Essays on Law and War at the Fault Lines

Essays on Law and War at the Fault Lines

Michael N. Schmitt

Essays on Law and War at the Fault Lines

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Prof. Michael N. Schmitt United States Naval War College 686 Cushing Road Newport, RI 02841-1207 USA e-mail: [email protected]

ISBN 978-90-6704-739-5 DOI 10.1007/978-90-6704-740-1  T.M.C. ASSER

PRESS,

e-ISBN 978-90-6704-740-1

The Hague, The Netherlands, and the author 2012

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: eStudio Calamar, Berlin/Figueres Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Preface

In 1952, Sir Hersch Lauterpacht, then the Whewell Professor of International Law at the University of Cambridge, famously suggested that ‘‘if international law is the vanishing point of law, the law of war is at the vanishing point of international law’’. The renowned scholar, who later served on the International Court of Justice, was merely echoing Cicero’s famous dictum, inter arma leges silent—in war the law is silent. Sadly, similar cynicism continues to animate discourse on the law of armed conflict. Although Lauterpacht’s grim assertion might well have seemed accurate in the aftermath of the Second World War’s horrific carnage, subsequent history has proven him wrong. Today, the laws of armed conflict are enforced in domestic courts, international ad hoc tribunals and the International Criminal Court, while the International Court of Justice appears increasingly comfortable dealing with use of force issues. A globalized media focuses attention on purported violations of the law of armed conflict, a robust network of non-governmental organizations exists to monitor hostilities and advocate on behalf of its victims, and governments are increasingly sensitized to the value of compliance with this body of law. True, law of armed conflict violations continue to occur; any hope of their demise in the foreseeable future is naïve. Nevertheless, in the twenty-first century, law exerts an influence on the behaviour of States and its military forces to an unprecedented degree Much as law influences conduct on the battlefield, changes in the nature of war affect the law governing it, for law and war exist in a symbiotic relationship. New tactics, strategies and technologies may influence law in three ways. First, they may cause outdated law to fall into desuetude. Such is the case, for example, with Article 60 of the 1949 Third Geneva Convention, which requires prisoners under the rank of sergeant to be paid eight Swiss Francs monthly. Second, emergent methods and means of warfare may reveal real or imagined normative lacunae, as is the case, many assert, with conflicts between States and transnational non-State actors like terrorists. Finally, law may prove difficult to interpret and apply in the context of evolving warfare because law typically develops in response to war rather than in anticipation of it. For instance, the use of unmanned aerial vehicles v

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to conduct attacks has raised interesting questions about the legal requirement to take precautions to minimize harm to civilians and civilian objects. This collection of essays explores such fault lines in the law of armed conflict. It is less a compilation of articles that have drawn particular attention over the years, than a republication of those which continue to bear on the complex interplay between warfare and law. In terms of approach, the influence of the New Haven School of international law should be apparent, for it abjures rigidly positivist analysis. To be relevant law must be understood in context; it is less the precise ‘‘black-letter’’ rules that matter, than their interpretation and application by States and other relevant international actors. These essays resultantly proceed from an examination of the nature of the warfare to a consideration of how relevant norms are likely to be understood and implemented in that defined environment. The book is comprised of 12 chapters divided into four parts, each dealing with distinct realms of interaction between law and conflict. Part I scrutinizes two issues of currency in the jus ad bellum, that facet of the law of armed conflict which governs when it is that States may resort to force as an instrument of their national policy… and when they may not. Chapter 1 explores computer network attack (CNA), a topic of particular prominence in light of chronic attacks against government computer networks over the past decade, the massive denial-of-service attacks targeting NATO member Estonia in 2007, and the use of CNA by both sides during the 2008 Georgia–Russia war. It essentially responds to two related questions: when does a computer network attack constitute an unlawful use of force in violation of Article 2(4) of the United Nations Charter and when is it an ‘‘armed attack’’ that allows a victim State to respond forcefully in self-defence pursuant to Article 51 and customary international law? Chapter 2 examines transnational terrorism against States, a topic brought into tragic focus by the attacks of 11 September 2001, and the response of States thereto. Do such acts rise to the level of a threat to the peace, breach of peace or act of aggression pursuant to Article 39 of the Charter, thereby empowering the Security Council to mandate non-forceful or forceful remedial action? Do attacks by non-State actors constitute ‘‘armed attacks’’ under Article 51, against which States may forcefully respond beyond, or in concert with, the law enforcement paradigm, and without a Security Council mandate? When may transnational terrorism be treated as attributable to a State to the extent that a defensive armed response against the State sponsor is lawful? Post-9/11 pronouncements by the International Court of Justice, particularly those in the Wall (2004) and Congo v. Uganda (2005) cases, have resparked debate over these issues and make their re-examination timely. The chapter also analyzes the controversial right of States to conduct cross-border operations against terrorists without the acquiescence of the State into which they are mounted. Continuing US strikes into Pakistan and isolated attacks on individual terrorists, such as the 2002 operation in Yemen, are illustrative. Parts II through IV examine issues of the jus in bello (international humanitarian law), the body of law which governs how force may be employed on the

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battlefield and which sets forth protections for civilians, prisoners of war, those hors de combat and civilian objects. It is wholly distinct from the jus ad bellum; the fact that a State may have been the victim of an act of aggression by another does not relieve it of the obligation to comply with the jus in bello. Equally, that a State has violated the jus ad bellum has no bearing on the protections its soldiers and civilians enjoy under the jus in bello. The law governing the ‘‘conduct of hostilities’’ is examined in Part II. The phrase ‘‘conduct of hostilities’’, an international humanitarian law (IHL) term of art, refers to ‘‘how’’ military operations, particularly attacks, may be conducted. Chapter 3 addresses IHL’s foundational premise—that all such law represents a delicate balance between the need of States to be able to effectively conduct warfare (military necessity) and their desire to limit its destructiveness (humanity). The concept of military necessity is often misinterpreted as either a justification for deviation from legal norms or as a factor that limits military operations beyond the strict confines of accepted IHL rules. The former misinterpretation risks becoming an exception that swallows all the rules; the latter is likely to be perceived by States as an unjustifiable threat to their ability to engage in military operations, and thereby would engender disrespect for the law on the part of States and their armed forces. Understanding that military necessity and humanitarian considerations are already counterpoised in the law helps avoid these pitfalls, and thereby facilitates accurate interpretation and application of the law. The chapter examines this evolving balance and the contemporary influences on it. Attention moves from theoretical matters to law as applied on the battlefield in Chap. 4, which considers what was labelled in the late 1990s as the ‘‘revolution in military affairs’’. It is a revolution that is now deeply imbedded in modern conflict. The resulting changes in the nature of warfare have dramatically affected, and continue to shape, the principle of discrimination. Discrimination bans the use of indiscriminate weapons and, more importantly, limits how discriminate weapons may be employed by requiring attackers to distinguish between civilians and combatants and between military objectives and civilian objects. Further, it both prohibits attacks expected to cause harm to civilians that is excessively relative to the anticipated military advantage and requires attackers to take precautions to minimize unintended collateral damage. The chapter asks how factors like the transformation of battlefields into ‘‘battlespaces’’, the advent of widespread precision attack capability and the increasing transparency of enemy forces have impacted application of these norms. Chapter 5 narrows the focus to the law governing attack. It represents a byproduct of the Harvard Air and Missile Warfare Manual project, with its many debates between participating experts over the precise parameters of targeting law. The chapter examines, inter alia, such persistent controversies as the scope of military objectives, the propriety of attacking civilian morale, the definition of the term ‘‘attack’’, ‘‘zero casualty’’ warfare, decapitation strikes, human shields, and the concept of ‘‘feasible’’ precautions in attack. All remain to be definitively resolved, and all lie at the very core of IHL. They represent the practical expressions of the military necessity—humanity balance discussed in Chap. 3.

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Part III takes up contentious ‘‘methods of warfare’’. Chapter 6 considers aerial blockades, a topic raised by the aerial embargos imposed by the United Nations in its 1990 effort to force the Iraqi withdrawal from Kuwait. Drawing on neutrality law, the law of the sea, United Nations Charter law and IHL, it is of relevance to any sort of aerial operation designed to limit or preclude flights. Thus, it bears on such contemporary matters as the use of force against hijacked civil aircraft and the imposition of ‘‘no-fly zones’’, like that over Libya pursuant to Security Council Resolution 1973 (2011). ‘‘Assassination’’ is dealt within Chap. 7. Originally written in the aftermath of the unsuccessful attempts to kill Saddam Hussein during Operation Desert Storm in 1991, the piece has since provided the foundation for much of the later research on targeting specific individuals. It traces the history of the prohibition on assassination in international humanitarian law, examines contemporary norms, considers assassination as a defensive act under the jus ad bellum and concludes with a case study of US domestic limits imposed following the famous Church Committee investigations. The analysis remains relevant in light of subsequent attempts to target Slobodan Milosevic during Operation Allied Force in 1999, the failed efforts to decapitate the Iraqi leadership during Operation Iraqi Freedom in 2003, and the current Israeli targeted killing policy. Chapter 5 applies much of the analysis first set forth in this chapter over a decade earlier to its examination of contemporary enemy leadership targeting. Interestingly, the Israeli Supreme Court, in its 2006 decision on targeted killings, dealt with the issue in the context of direct participation in hostilities by civilians, the subject of Chap. 10. The three chapters should accordingly be read together to acquire a full understanding of this complicated subject. As with leadership targeting, the Gulf War of 1991 prompted awareness of the deleterious environmental consequences of warfare. For reasons that remain undetermined, Iraqi forces set hundreds of Kuwaiti oil wells ablaze and released huge quantities of oil into the Persian Gulf. Chapter 8 assesses these actions in the context of customary IHL, treaty law such as Additional Protocol I’s environmental provisions, and various soft law instruments. It challenges the prevailing attitude that international law sufficiently protects the environment, instead asserting that the relevant law is impractical, inadequately precise, and internally incoherent. The final chapter of Part III addresses a subject that attracted much interest when the capability was being developed over a decade ago, and which is again the focus of frenzied analysis, computer network attack. Chapter 9 is a bookend to Chap. 1; whereas the latter deals with CNA’s jus ad bellum implications, the former considers its IHL strictures. Of particular interest is the discussion of the term ‘‘attack’’. A major point of contention in IHL circles is whether a cyberoperation which neither damages objects nor harms individuals can be classified as an attack, such that its use against civilians and civilian objects is prohibited. This chapter takes the position that operations of this nature do not so qualify, although experts remain divided on the issue. It also addresses numerous other issues raised by cyber operations, such as cyber-perfidy.

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Part IV includes two chapters exploring civilian loss of protection against attack and a chapter examining the investigation of alleged violations of the law of war. The first two deal with issues that arose during the Balkans operations of the 1990s, but later resurfaced during debates about Operations Enduring Freedom in Afghanistan and Iraqi Freedom in Iraq. The third addresses the law of investigations, a topic brought into focus by allegations that Israel failed to adequately examine possible IHL violations following Operation Cast Lead, its 2006 incursion into Gaza, and the 2010 incident involving breach of its blockade of Gaza, which involved the death of nine individuals aboard one of the breaching vessels. Chapter 10 explores the controversial subject of direct participation in hostilities. Under IHL, civilians who directly participate in hostilities forfeit their protections for such time as they so participate. Sadly, the phenomenon of civilians on the battlefield—ranging from private military contractors to insurgents—is growing. Accordingly, in 2003 the International Committee of the Red Cross launched a major project to elucidate the parameters of the rules which withdraw protection from civilians while they are involved in armed conflicts. The result was its 2009 publication of the Interpretive Guidance on the Notion of Direct Participation in Hostilities. Although the Guidance marks a significant contribution to understanding the concept of direct participation, it is, in the view of many critics, flawed in a number of ways. This chapter analyzes the disagreements, paying particular attention to whether the Guidance represents a fair balancing of military necessity and humanity. Conflict in the last two decades has also witnessed growing use of human shields, although the practice is by no means new. Chapter 11 argues that in order to understand the norms governing the use of human shields, it is necessary to distinguish between those who voluntarily shield military objects and those who are forced to do so. In great part, the treatment of the former is determined by whether they are considered direct participants in hostilities. As to the latter, disagreement exists over whether the enemy’s illegal use of involuntary shields to protect military objectives should affect an attacker’s legal obligations vis-à-vis civilians in a target area. Consensus among experts on the matter remains elusive and the debate continues. The book concludes in Chap. 12 with an examination of the law governing investigations of international law violations occurring during armed conflicts. The matter arose in response to allegations that the Israelis and Palestinians have failed to adequately investigate possible violations during their conflicts. However, it is a subject of much wider application. The chapter identifies the applicable norms of international humanitarian and human rights law, and discusses the complex interplay between the bodies of law in this regard. Since the extant rules lack specificity, State practice is catalogued in an attempt to infuse them with granularity. Ultimately, the viability of IHL depends on the existence of effective and efficient means of identifying possible breaches, as well as robust measures to respond to them. No work of this nature would be possible without the inspiration, guidance and support of mentors. I have been blessed with many. In this regard, four stand out

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and are due special appreciation: Michael Reisman, the Myres S. McDougal Professor of International Law at Yale law School; Leslie Green, University Professor Emeritus at the University of Alberta; Jack Grunawalt, Professor Emeritus at the United States Naval War College; and Yoram Dinstein, Professor Emeritus at Tel Aviv University. Although the propositions set forth in this book are entirely my own, each of them has deeply influenced my work over the years. They have earned my enduring gratitude. Michael N. Schmitt United States Naval War College Newport, RI, USA

Contents

Part I 1

2

Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework . . . .

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Responding to Transnational Terrorism Under the Jus ad Bellum: A Normative Framework. . . . . . . . . . . . . . . . . . .

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Part II 3

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Conduct of Hostilities

Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance . . . . . . . . . .

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The Principle of Discrimination in Twenty First Century Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Fault Lines in the Law of Attack . . . . . . . . . . . . . . . . . . . . . . . .

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Part III 6

The Use of Force

Methods of Warfare

Aerial Blockades in Historical, Legal, and Practical Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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State-Sponsored Assassination in International and Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

Green War: An Assessment of the Environmental Law of International Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . .

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Wired Warfare: Computer Network Attack and Jus in Bello . . . .

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Part IV

Protection and Enforcement

10 The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis . . . . . . . . . . . . . .

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11 Human Shields in International Humanitarian Law. . . . . . . . . . .

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12 Investigating Violations of International Law in Armed Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Biographical Sketch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Part I

The Use of Force

Chapter 1

Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework

Abstract This Chapter explores the acceptability under the jus ad bellum, that body of international law governing the resort to force as an instrument of national policy, of computer network attack. Analysis centers on the United Nations Charter’s prohibition of the use of force in Article 2(4), its Chapter VII security scheme, and the inherent right to self-defense codified in Article 51. Concluding that traditional applications of the use of force prohibition fail to adequately safeguard shared community values threatened by CNA, the Chapter proposes an alternative normative framework based on scrutiny of the consequences caused by such operations.

Contents 1.1 Understanding Computer Network Attack ...................................................................... 1.2 Computer Network Attack as a Use of Force................................................................. 1.3 Responding to Computer Network Attacks with Force.................................................. 1.4 Concluding Thoughts on the Appropriate Normative Framework................................. References..................................................................................................................................

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As the next millennium approaches, the global community’s dependence on computers and the networks that connect them, such as the Internet, is growing exponentially. This dependency amounts to a significant vulnerability, for computer networks underlie key societal functions as diverse as finance, military command and control, medical treatment, and transportation. Great attention is already being placed on the methods and means by which computer network

Previously published in 37 Columbia Journal of Transnational Law (1999) 885.

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_1,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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attacks (CNA) might be conducted, and significant resources are being devoted to developing offensive and defensive CNA capabilities. This chapter explores the acceptability under the jus ad bellum, that body of international law governing the resort to force as an instrument of national policy, of computer network attack. Analysis centers on the United Nations Charter’s prohibition of the use of force in Article 2(4), its Chapter VII security scheme, and the inherent right to self-defense codified in Article 51. Concluding that traditional applications of the use of force prohibition fail to adequately safeguard shared community values threatened by CNA, the chapter proposes an alternative normative framework based on scrutiny of the consequences caused by such operations. By contrast, the Chapter VII security regime is assessed as sufficiently flexible to adapt to the new threats represented by CNA. Finally, the chapter argues for a rather restricted understanding of the right to self-defense, suggesting that it be limited to operations which are de facto armed attacks, or imminently preparatory thereto. The net result is a limitation on both state resort to CNA techniques which might threaten global stability and on individual responses which might themselves prove destabilizing. The global community is fast becoming ‘‘wired.’’ By the beginning of the next millennium some 100 million individuals will enjoy access to the Internet.1 Indeed, over the past decade the number of users has almost doubled annually.2 Today, students attend virtual universities continents away from their computer terminals; shoppers buy on-line from their living room, and lawyers perform complex legal research without ever opening a law book. More significantly, the use of computers, and the networks that link them to one another, has become far more than a matter of mere convenience—in some cases survival may be at stake. International air traffic control relies on linked computer nets, as do such diverse, and critical, functions as telephone operations, emergency response, medical record management, oil distribution, municipal sewage treatment, electrical generation, and railway switching. Military reliance on computers has grown in lock-step fashion with reliance on computers in the civilian sector. Today, the United States Department of Defense (DOD) employs well over two million computers and operates more than ten thousand local area networks. Moreover, some two hundred command centers are 1

See Swett 1995. To illustrate the global nature of the phenomenon, consider the number of computers linked to the worldwide net per 10,000 persons for selected countries: Finland, 500+; U.S., 300+; Norway, Australia, New Zealand, Sweden, 200+; Denmark, Switzerland, Canada, Netherlands, Singapore, 100+; United Kingdom, nearly 100. See Office of the Assistant Secretary of Defense for Command, Control, Communications and Intelligence, Directorate for Information Operations, Presentation at National Defense University (Jan. 1998). 2 See Information Security: Computer Attacks at Department of Defense Pose Increasing Risks: Testimony Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 104th Cong. (1996) (statement of Jack L. Brock, Director, Defense Information and Financial Management Systems Accounting and Information, General Accounting Office) [hereinafter Brock]; Accounting and Information Management Division, Information Security: Computer Attacks at Department of Defense Pose Increasing Risks (GAO/ T-AIMD-96-92, May 22, 1996).

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computer-dependent. These figures do not account for the two million plus computer users that regularly do business with the DOD.3 While the armed forces of other nations are less dependent on computer resources and connectivity than those of the United States, the trend towards military computerization, with varying degrees of fervor, approaches universality. After all, the 1990–1991 Gulf War aptly demonstrated the determinative effect of technology, particularly computerenabled logistics, communications, intelligence, and force application, on the modem battlefield. It was a lesson lost on few military thinkers or operators.4 Paradoxically, most capabilities carry within them the seeds of vulnerability, a truism well-illustrated by the new cyber dependencies, both civilian and military. Whether quantitative or qualitative in nature, the extraordinary advances made possible by breakthroughs in computer technology represent dangerous vulnerabilities exploitable by opponents ranging from economic, political, and military competitors to terrorists and criminals. These threat sources are familiar. However, the unique nature of the cyber threats they pose differs in four interrelated ways from those traditionally faced. First, computer networks comprise a new target category. It is no longer necessary, for example, to physically destroy electrical generation facilities to cut power to a foe’s command and control system; instead, the computer network that drives the distribution system can be brought down to accomplish the same result. Second, whereas the means of ‘‘attack’’ in centuries past usually presupposed the use of kinetic force, in the twenty-first century an attack may be nothing more than the transfer of cyber commands from one computer to others. Third, while the result of a cyber attack may be physical destruction, such as the ‘‘meltdown’’ of a nuclear reactor following interference with its control systems, it need not be. The objective may simply be to shut off a particular service or function (e.g., disrupting telecommunications) or to alter or misdirect data (e.g., unauthorized electronic funds transfer or transmittal of false intelligence information). Finally, cyber attacks stretch traditional notions of territorial integrity. In most cases they will not involve the crossing of political borders by any tangible instrument of the attacker, such as military forces, equipment, or projectiles.5 3

See Brock, supra note 2. On the changing face of war and its relationship to the law of armed conflict, see generally Schmitt 1998. For more general discussion of the ‘‘revolution in military affairs,’’ see Cohen 1998, ch. 13; Drew 1987, at 21; Fitzsimonds 1995, at 30; Gourè 1993, at 175; Krepinevich Jr. 1995; 1994, at 23; McKenzie Jr. 1995, at 15; Shelat 1994, at 52. 5 Bibliographies on information operations are available on-line. See, e.g., An IW Bibliography (visited Feb. 24, 1999) http://www.infowar.com/RESOURCE/IWBIBl.html-ssi; Air University, Information Warfare (visited Feb. 24, 1999) http://www.au.af.mil/au/aul/bibs/infowar/if.htm; Naval War College, Library Notes (visited Feb. 24, 1999) http://www.nwc.navy.mil/library/libinfwf. htm. For an introduction to the subject, see generally Alberts and Papps 1997; Campen 1996; Campen and Dearth 1998; Libicki 1995a; b; Schwartau 1994. A number of these works and others on information warfare are available on-line at the National Defense University’s electronic books website. See National Defense University Press Books On-line (visited Feb. 24, 1999) http://www.ndu.edu/inss/books/books.html. 4

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This chapter explores the jus ad bellum implications of one such cyber threat— ‘‘computer network attack’’—in a state-on-state context. Computer network attack consists of ‘‘[o]perations to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves.’’6 After briefly setting forth the technical and doctrinal framework for CNA, analysis will turn to the issue this new potential technique of international coercion poses: When does a computer network attack conducted by, or on behalf of, a state constitute a wrongful use of force under international law? Though it is not the focus of this essay, a brief discussion of the responses available to a state victimized by CNA will follow. Such issues arise in two scenarios. In the first, State A conducts CNA operations against State B with no intention of ever escalating the conflict to the level of armed engagement. The advantages gained through the CNA are ends in themselves. In the second scenario, State A conducts CNA operations in order to prepare the battle space for a conventional attack. The goal is to disorient, disrupt, blind, or mislead State B so as to enhance the likelihood that conventional military operations will prove successful. Although not limited to the security scheme set forth in the United Nations Charter, analytical emphasis will be placed on the prohibition on the use or threat of force in Article 2(4), Chapter VII’s authorization of community responses in the face of aggression, and the right to self-defense codified in Article 51. The intent is to survey the existing normative architecture for prescriptive fault lines, those points where the jus ad bellum, as understood in prevailing cognitive paradigms, fails to adequately safeguard and foster shared global values.7 To the extent such fault lines are identified, suggestions as to how either causative normative lacunae might best be filled, or cognitive paradigms might profitably shift, will be offered for consideration. The chapter will conclude with tentative thoughts on the policy implications of differing approaches to addressing the fault lines.

1.1 Understanding Computer Network Attack Computer network attack is but one form of a relatively new category of warfare, information operations (IO).8 Information operations comprise ‘‘[a]ctions taken to affect adversary information and information systems while defending one’s own 6

Joint Chiefs of Staff, Joint Pub. 3–13, Joint Doctrine for Information Operations GL-5 (Oct. 9, 1998) [hereinafter Joint Pub. 3–13]. 7 For surveys on information operations and the law, see generally Office of the Judge Advocate General, Headquarters United States Air Force 1997; DiCenso 1998; Dunlap 1998; Greenberg et al. 1998; Kanuck 1996; Shulman 1999. 8 Although efforts to affect an opponent’s information base and protect one’s own have characterized warfare throughout history, it is only in the last decade that IO has been recognized as a distinct form of warfare meriting its own separate doctrine, policy, and tactics.

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information and information systems.’’9 The term must be understood very expansively. For instance, the United States military defines information as ‘‘facts, data, or instructions in any medium or form’’ and an information system as the ‘‘entire infrastructure, organization, personnel, and components that collect, process, store, transmit, display, disseminate, and act on information.’’10 Thus, information operations would encompass, among an array of other activities, virtually any non consensual actions intended to discover, alter, destroy, disrupt, or transfer data stored in a computer, manipulated by a computer, or transmitted through a computer network. To the extent these operations, whether occurring during times of peace or armed conflict, intend interference with a country’s national defense by targeting defense premises or resources, including human and natural resources, they constitute ‘‘sabotage.’’11 It should also be noted that the term ‘‘information warfare’’ (IW) is often incorrectly used as a synonym for ‘‘information operations.’’ In fact, IW accurately refers only to those information operations conducted during times of crisis or conflict intended to effect specific results against a particular opponent.12 Thus, IW would not include information operations occurring during peacetime.

9 Joint Pub. 3–13, supra note 6, at GL-7. For the IO policy of U.S. forces, see generally Information Operations, U.S. Dep’t of Def. Directive (DODD) S-3600.1 (Dec. 9, 1996); Joint Information Operations Policy, Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3210.01A (Jan. 1996). Other official IO-related guidance includes: Defensive Information Warfare Operations Implementation, Chairman of The Joint Chiefs of Staff Instruction (CJCSI) 6510.01 (Aug. 22, 1997); Joint Chiefs of Staff, Joint Pub. 3–13.1, Joint Doctrine for Command and Control Warfare (Feb. 7, 1996) [hereinafter Joint Pub. 3–13.1]; Joint Chiefs of Staff, Joint Pub. 3–53, Doctrine for Joint Psychological Operations (July 10, 1996) [hereinafter Joint Pub. 3– 53]; Joint Chiefs of Staff, Joint Pub. 3–58, Joint Doctrine for Military Deception (May 31, 1996) [hereinafter Joint Pub. 3–58]; U.S. Dep’t of the Navy, Chief of Naval Operations Instruction 3430.26, Implementing Instruction for Information Warfare Command and Control (Jan. 18, 1995); U.S. Dep’t of the Navy, Naval Doctrine Publication 6, Naval Command and Control (May 19, 1995); U.S. Dep’t of the Air Force, Air Force Doctrine Document 2–5, Information Operations (Aug 5, 1998); U.S. Dep’t of the Army, U.S. Army Field Manual 100–106, Information Operations (Aug. 27, 1996); U.S. Marine Corps, Marine Corps Order 3430.1, Policy for Information Operations (May 19, 1997). See also U.S. Dep’t of the Air Force, the Cornerstones of Information Warfare (1995). Many U.S. military publications are available online. See joint Electronic Library (visited Feb. 24, 1999) http://www.dtic.mil/doctrine/jel/. 10 Joint Pub. 3–13, supra note 6, at GL-7 (emphasis added). 11 See U.S. Dep’t of Defense, Joint Pub. 1-02, Dictionary of Military and Associated Terms 387 (March 23, 1994, as amended through June 10, 1998), available at DODD Dictionary of Military Terms (visited Feb. 24, 1999) http://www.dtic.mil/doctrine/jel/doddict/ [hereinafter JOINT PUB. 1-02]. The key distinguishing characteristic of sabotage is its design to interfere with the national defense. Thus, an attack on the banking system would not constitute sabotage, but one on a factory manufacturing military equipment would. 12 See id. at 217. Information operations must also be distinguished from command and control warfare (C2W), a form of IO with the specific purpose of influencing, degrading, or destroying an opponent’s ability to direct its forces. On C2W, see Joint Pub. 3–13.1, supra note 9.

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As suggested, IO is subdivided into defensive and offensive information operations.13 CNA lies within the latter grouping, together with such varied activities as military deception,14 psychological operations,15 electronic warfare,16 physical attack, and special information operations.17 Its defining aspect is that it operates on data existing in computers or computer networks. That being so, computer network attack cuts across many categories of offensive IO—its intended result, for instance, might be deception or psychological effect. It is a technique, rather than a particular genre of objective. CNA operations can be used to facilitate strategic, operational, and tactical ends.18 Further, because physical destruction seldom results from CNA, decision-makers find it a particularly attractive option in situations short of armed conflict.19 CNA techniques vary widely. Perhaps best known is the transmission of computer viruses into an adversary’s computer network to destroy or alter data and programs. Logic bombs can also be introduced that sit idle in a system, awaiting activation at the occurrence of a particular event or set time. A logic bomb might be set to ‘‘explode’’ upon the call-up of reserve forces. Other techniques for

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Defensive IO ‘‘integrate[s] and coordinate[s] policies and procedures, operations, personnel, and technology to protect and defend information and information systems.’’ Activities that support defensive IO include ‘‘information assurance (IA), OPSEC [operations security], physical security, counterdeception, counterpropoganda, counterintelligence (CI), EW [electronic warfare], and SIO [special information operations].’’ Joint Pub. 3–13, supra note 6, at I-10. Each of these terms is defined in the Glossary to Joint Pub. 3–13, supra note 6. Offensive IO, by contrast, is intended to ‘‘affect adversary decision makers and achieve or promote specific objectives.’’ Id. at I–10. 14 ‘‘Actions executed to deliberately mislead adversary military decision makers as to friendly military capabilities, intentions, and operations, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission.’’ Joint Pub. 1-02, supra note 11, at 28l. 15 ‘‘Planned operations to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals. The purpose … is to induce or reinforce foreign attitudes and behavior favorable to the originator’s objectives.’’ Id. at 358. 16 ‘‘Any military action involving the use of electromagnetic and directed energy to control the electromagnetic spectrum or to attack the enemy.’’ Id. at 15l. 17 ‘‘Information operations that by their sensitive nature, due to their potential effect or impact, security requirements, or risk to the national security of the United States, require a special review and approval process.’’ Joint Pub. 3–13, supra note 6, at GL-10. 18 Strategic objectives are those at the national or multinational level. Operational objectives lie at the level of major military campaigns or of a military theater of operations. Tactical objectives arise at the individual battle or engagement level. 19 In fact, IO has been characterized as possibly having its ‘‘greatest impact in peace and the initial stages of crisis.’’ Joint Chiefs of Staff, Information Warfare: A Strategy for Peace … The Decisive Edge in War 5 (n.d.). This is because many, if not most, of its effects are other than physical destruction. Indeed, according to the JCS, ‘‘IW [sic] can make an important contribution to defusing crises; reducing the period of confrontation and enhancing the impact of informational, diplomatic, economic, and military efforts; and forestalling or eliminating the need to employ forces in a combat situation.’’ Id.

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disrupting information systems range from simply flooding it with false information to using ‘‘sniffer’’ programs to collect access codes that allow entry into a targeted system. In some cases, such attacks may occur without revealing the source, or even the fact, of the attack. In others, the identity of the attacker might be ‘‘spoofed’’ so as to convince the victim that the attack originated elsewhere. Hypothetical examples of CNA, some realistic, others stretching credulity, abound in the literature. Consider just a few. (1) Trains are misrouted and crash after the computer systems controlling them are maliciously manipulated.20 (2) An information blockade is mounted to limit the flow of electronic information into or out of a target state.21 (3) Banking computer systems are broken into and their databases corrupted.22 (4) An automated municipal traffic control system is compromised, thereby causing massive traffic jams and frustrating responses by emergency fire, medical, and law enforcement vehicles.23 (5) Intrusion into the computer system controlling water distribution allows the intruder to rapidly open and close valves. This creates a hammer effect that eventually causes widespread pipe ruptures.24 (6) A logic bomb set to activate upon initiation of mass casualty operations is imbedded in a municipal emergency response computer system. Lest such scenarios seem implausible, computer networks have already proven remarkably vulnerable. For instance, the Defense Information Systems Agency (DISA) identified 53 attacks on military and DOD systems in 1992. By 1995 that number had grown to 559, and an astonishing fourteen thousand incidents are anticipated in 1999. In addition, DISA estimates that only one attack in 150 is detected.25 In what is perhaps the best known incident, two hackers penetrated the Air Force’s Rome Laboratory in 1994 by using software that allowed them to

20

See Molander et al. 1996. See Kanuck 1996, at 289. 22 See Molander 1996, at 74. 23 See President’s Commission on Critical Infrastructure Protection (Oct 1997). 24 See id. at A-46. 25 See Uchida 1997. In order to test computer security, DlSA periodically uses typical ‘‘hackertools’’ to attack DOD computers. During a test of over 26, 000 unclassified computers in 1995, only 2% of the intrusions were detected, and of those only 5% were properly reported to the appropriate authorities. See Defense Science Board Task Force 1996. In another study looking at the results of 59 assessments involving 37,518 computers, 3.6% had easily exploitable ‘‘backdoors,’’ 65% could be penetrated once the intruder was inside the network, 96% of professionally conducted penetrations go undetected by systems administrators and users, and 73% of detected penetrations were not reported. See Strassmann 1998. 21

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appear legitimate. The intruders entered the system over 150 times, established links with foreign Internet sites, copied sensitive data, and attacked other linked government facilities and defense contractor systems.26 Particularly problematic is the fact that the source of the vulnerability is the very interconnectedness that renders networks so powerful. Most significantly, interconnectivity exacerbates the consequences of CNA due to the likelihood of reverberating effects. An incident in 1996 illustrates how this phenomenon can occur. When a single power line in Oregon short-circuited, other power lines were forced to assume its load. Unable to cope with the increased demand, they too became overloaded and were shut down. The situation continued to snowball. By the time it was brought under control, a power blackout had spread to portions of fifteen states, as well as parts of Canada and Mexico.27 Although not the product of a computer network attack, an identical result could easily have been caused by one. The danger is that interrelationships cut across critical components of the national infrastructure. The Office of Science and Technology Policy, likening it to Mrs. O’Leary’s cow and the Great Chicago Fire, highlighted this dilemma in an assessment of infrastructure vulnerability: The public telephone network, for example, relies on the power grid, the power grid on transportation, and all the sectors on telecommunications and the financial structure … Most of today’s cybernetic networks are actually combinations of networks, interconnected and interdependent. Interactions among these subsystems are critical to overall network performance, indeed they are the essence of network performance. Because the system also interacts with the real world environment, the interactions among subsystems are not necessarily predictable and sequential, like the steps of an assembly process, but can be essentially random, unsynchronized, and even unanticipated.28

Obviously, this complex national infrastructure web contains within it the likeliest CNA targets, both because of its national import, and because it offers an opponent countless avenues of attack. Our energy, communications, industrial, financial, transportation, human services, and defense systems are brimming with

26 27 28

See Office of Science and Technology Policy, Executive Office of the President 1997. See id. Id. The Defense Science Board Task Force also noted this point. Our Task Force had many enlightening discussions about the potential for effects to cascade through one infrastructure (such as the phone system) into other infrastructures. This example is particularly important because most of our other infrastructures ride on the phone system. No one Seems to know quite how, where, or when effects actually would cascade; nor what the total impact would be.

Defense Science Board Task Force 1996, at 2–14.

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computer dependencies.29 Predictive efforts centering on potential targets and the methods that might be used to attack them lie at the core of defensive planning (and offensive brainstorming). Although such labors at times approximate random speculation, consider a representative attempt in the form of a notional list of the ‘‘Top 10’’ Information Warfare targets: (1) Culpeper, Virginia electronic switch which handles all Federal funds and transactions; (2) Alaska pipeline which currently carries 10% of all U.S. domestic oil; (3) Electronic switching system which manages all telephones; (4) Internet; (5) Time distribution system; (6) Panama Canal; (7) Worldwide Military Command and Control System (WMCSS);

29

The President’s Commission on Critical Infrastructure Protection focused on the existence of infrastructures and the vulnerabilities they represent. Life is good in America because things work … We are able to assume that things will work because our infrastructures are highly developed and highly effective … By infrastructure we mean more than just a collection of individual companies engaged in related activities; we mean a network of independent, mostly privately owned, manmade systems and processes that function collaboratively and synergistically to produce and distribute a continuous flow of essential goods and services. It noted the criticality of certain aspects of the infrastructure. • Transportation … moves goods and people within and beyond our borders, and makes it possible for the United States to play a leading role in the global economy. • Oil and gas production and storage … infrastructure fuels transportation services, manufacturing operations, and home utilities. • The water supply infrastructure assures steady flow of water for agriculture, industry (including various manufacturing processes, power generation, and cooling), business, fire fighting, and our homes. • Government services … consists of federal, state, and local agencies that provide essential services to the public. • Banking & finance … manages trillions of dollars, from deposit of our individual paycheck to the transfer of huge amounts in support of major global enterprises. • Electrical power infrastructure … [includes] generation, transmission, and distribution systems that are essential to all other infrastructures and every aspect of our economy. • Telecommunications [have] … been revolutionized by advances in information technology in the past two decades to form an information and communications infrastructure, consisting of the Public Telecommunications Network (PTN), the Internet, and the many millions of computers in home, commercial, academic, and government use … connected to one another … Networking is essential to a service economy as well as to competitive manufacturing and efficient delivery of raw materials and finished goods. The information and communications infrastructure is basic to responsive emergency services. It is the backbone of our military command and control system. And it is becoming the core of our educational system.

President’s Commission on Critical Infrastructure Protection President’s Commission on Critical Infrastructure Protection (Oct 1997), at 3–4.

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(8) Air Force satellite control network; (9) Strait of Malacca, the major maritime link between Europe-Arabian Peninsula and the Western Pacific and East Asia; (10) National Photographic Interpretation Center (Washington).30 Of course, these are information warfare targets designed to enhance an attacker’s relative military position in times of crisis or conflict. Target sets would certainly differ for CNA conducted as part of a peacetime operation not intended to prepare the battle space for future conflict. However, the list illustrates specific examples of targets that serious thinkers have contemplated. Actual targets would, of course, depend on the overall political-military objective sought by the attacking state. The emerging information age generates new vulnerabilities that are likely to be exploited. Opponents of developed, first-world states cannot hope to prevail on the battlefield, or even in the boardroom. The technological and fiscal wherewithal of the developed states underlies an unprecedented level of military and economic supremacy. Moreover, as between these preeminent states (primarily the United States, its NATO allies, and Japan), the likelihood of armed conflict is de minimus. Thus, opponents of any particular state cannot hope to turn to a peer competitor of that state for support. Facing these realities, a lesser-advantaged state hoping to seriously harm a dominant adversary must inevitably compete asymmetrically. It must seek to counter the strengths of the opponent not head-on, but rather, circuitously, employing unorthodox means to strike at centers of gravity. For instance, possession of weapons of mass destruction (WMD) can offset conventional military weakness. This is precisely why the United Nations Security Council takes the UNSCOM effort to deprive Iraq of WMD so seriously. Iraq cannot possibly hope to successfully confront the U.S. and its allies on the battlefield, but a credible threat to employ chemical or biological weapons in pursuit of national objectives would give it disproportionate (and malevolent) influence on the world scene. Similarly, asymmetry also undergirds most state or state-sponsored terrorism. It presents a relatively inexpensive means of striking a superior opponent in a very visible, yet relatively cost-free manner.31 CNA offers analogous asymmetrical benefits. In the first place, and as will be explored infra, in many cases a computer network attack will either not merit a

30

Gumahad II 1997, at 14, 18, citing Wired Magazine, July–Aug. 1993. An interesting IO scenario was used during a war game at National Defense University. Set in the year 2000, it involved an OPEC meeting that goes awry when Saudi Arabia opposes Iranian demands for an oil production cutback in order to drive prices up. Iran mobilizes and conducts several attacks on Saudi warships. It also begins to conduct information warfare operations to destabiIize the Saudi regime and keep the United States and United Kingdom out of the fray. A Saudi refinery is destroyed when computer malfunctions in its control mechanisms cause a fire; a ‘‘logic bomb’’ placed in the computer system running U.S. railways causes a passenger train to derail; computer ‘‘worms’’ begin to corrupt the U.S. military’s classified deployment database, and a ‘‘sniffer’’ disrupts fund transfers in the Bank of England. See Lohr 1996, at D-l. 31 On asymmetry, see generally Schmitt 1998.

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response involving the use of force, or the legality of such a response will be debatable (even if the victim is able to accurately identify the fact, much less the source, of attack). Thus, because of the potentially grave impact of CNA on a state’s infrastructure, it can prove a high gain, low risk option for a state outclassed militarily or economically. Moreover, to the extent that an opponent is militarily and economically advantaged, it is probably technologically-dependent, and, therefore, teeming with tempting CNA targets. To further complicate matters, the knowledge and equipment necessary to mount a computer network attack are widely available; CNA is quite literally ‘‘war on the cheap.’’ One expert has asserted that with one million dollars and twenty individuals, he can ‘‘bring the U.S. to its knees.’’32 Another maintains that the defense information infrastructure (DII) can be disrupted for weeks by ten individuals with $10,000, while still others claim that for $30,000,000, one hundred individuals could so corrupt the country’s entire information infrastructure that recovery would take years.33 To place these figures into context, a single F-16 aircraft cost $26,000,000 in fiscal year 1997.34 Unfortunately, the ability to conduct such operations is widespread. The President’s Commission on Critical Infrastructure Protection has projected that by the year 2002, some nineteen million individuals will have the know-how to launch cyber attacks.35 Today, over 120 countries are in the process of establishing information operations competence.36 In particular, the Chinese have discovered information warfare, and organized research in the subject proceeds apace.37 So too, not surprisingly, has the United States. Each of the armed services, as well as the Central Intelligence Agency, currently operates an information operations center.38 The centrality of information assets to national security, and therefore the need to safeguard them from CNA, cannot be overstated, a point well-recognized in official doctrine. The U.S. National Security Strategy for 1997, states that:

32

Planning Considerations for Defensive Information Warfare, Task Order 90-SAlC-019, Dec. 16, 1993 (prepared for The Defense Information Systems Agency, Joint Interoperability and Engineering Organization, and Center for Information Systems Security) (citing Steele 1993) [hereinafter Planning Considerations]. 33 See Planning Considerations, supra note 32, at 17. 34 See Jackson et al. 1997–1998. 35 See President’s Commission on Critical Infrastructure Protection (Oct. 1997, at 9. Moreover, there will be approximately 1,300,000 ‘‘telecommunications systems control software specialists with tools and know how to disrupt or take down the public telecommunications network.’’ Id. 36 See Brock, supra note 2, at 5. 37 See Lung and Feng 1996. According to the report, preparations are underway for the establishment of an Information Warfare Institute, a non-governmental entity that will be responsible for ‘‘strategic planning … theoretical studies, and technological development. Its aim is to enable high-technology advances from the non military sector to be applied to the military sector under the guidance of military theory.’’ Id. Russia is also interested in enhancing IO capabilities. See, e.g., FitzGerald 1997. 38 See Walsh 1997, at 25; Lohr 1996, at D4.

14

1 Computer Network Attack and the Use of Force in International Law The national security posture of the United States is increasingly dependent on our information infrastructures. These infrastructures are highly interdependent and are increasingly vulnerable to tampering and exploitation. Concepts and technologies are being developed and employed to protect and defend against these vulnerabilities; we must fully implement them to ensure the future security of not only our national information infrastructures, but our nation as well.39

Similarly, the most recently published National Military Strategy provides: Success in any operation depends on our ability to quickly and accurately integrate critical information and deny the same to an adversary. We must attain information superiority through the conduct of both offensive and defensive information operations … Superiority in these areas will enable commanders to contend with information threats to their forces, including attacks which may originate from outside their area of operations. It also limits an adversary’s freedom of action by disabling his critical information systems.40

In light of this centrality, jus ad bellum issues loom large. The information infrastructure and its multitudinous components comprise an attractive target set, and because of the ease with which CNA can be conducted, a critical, and difficult to defend, vulnerability. It is to the legal milieu in which such operations might occur that analysis shall now turn.

1.2 Computer Network Attack as a Use of Force As noted, any number of purposes might motivate a state to conduct computer network attacks. Perhaps the CNA is designed to lay the groundwork for a subsequent conventional attack. Alternatively, it may be intended to stand alone, to cause damage and disruption without any desire to facilitate latter traditional military operations. Regardless of its aim, normative evaluation of the actions that occur will center on whether or not the actions constituted a wrongful use of force, or threat thereof, in violation of international law. Article 2(4) of the UN Charter expresses the key prescription in international law regarding the use of force. By that provision, ‘‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’’41 Purposes of the United Nations expressly cited in the Charter include the maintenance of international peace and security.42 Therefore, uses (or threats) of force which endanger international stability fall within Article 39

Office of the Press Secretary, The White House, A National Security Strategy for a New Century (May 17, 1997) (visited Feb. 23, 1999) http://wwwl.whitehouse.gov/WH/html/libraryplain.html. 40 Joint Chiefs of Staff, National Military Strategy: Shape, Respond, Prepare Now, A Military Strategy for A New Era (1997) (visited Feb. 23, 1999) http://www.dtic.mil/jcs/nms. 41 U.N. Charter Article 2, para 4. 42 See id. Article 1, para 1.

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2(4)’s prescriptive envelope. It is a prohibition reiterated in numerous international instruments, both binding and aspirational.43 Lest the provision be misinterpreted, it is important to recall that Article 2(4) is prohibitive rather than remedial in nature. It does not, in and of itself, authorize any response to a use or threat of force. Rather, the Charter delineates the bases for response to the wrongful use of force, as will be discussed infra, in Chapters VI and VII. Article 2(4) merely serves to render particular uses of force wrongful in the Charter scheme. Before turning to the specific query of when CNA might violate Article 2(4), it is first necessary to briefly consider the reach of Article 2(4).44 The most significant issue surrounds the seemingly restrictive phrase ‘‘territorial integrity or political independence, or in any other manner inconsistent with the Purposes.’’ Are there uses of force not otherwise authorized within the Charter that fall beyond Article 2(4)’s gamut because they do not threaten the territorial integrity or political independence of a target state or otherwise violate some specifically articulated prohibition found elsewhere in the Charter? Although the precise wording of the article generated much controversy as the Charter was being negotiated,45 the mainstream view among international law experts is that the ‘‘other manner’’ language extends coverage to virtually any use of force not authorized within the Charter.46 Thus, applying the prevailing positivist approach, analysis of use of force scenarios proceeds from the premise that an authorization for the use has to be found within the four corners of the Charter, not from the postulate that force is permissible unless a specific Charter prohibition thereon

43

For instance, the General Assembly, in its resolution regarding the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, has provided that, Every State has a duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.

G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8082 (1970), reprinted in. Rauschning et al. 1997, at 3. The resolution was adopted by acclamation. 44 The analysis which follows will address uses of force, but applies equally to threats to use force. In other words, to the extent that CNA constitutes a use of force, the threat to commit such an attack will also be prohibited. On threats, see Sadurska 1988. 45 Originally, the draft of the Charter did not contain the terms territorial integrity or political independence, and the proposal for their inclusion was controversial. However, the travaux make it clear that the ‘‘other manner’’ language filled any possible voids in coverage. See Doc. 1123, I/ 8, 6 U.N.C.I.O Docs. 65 (1945); Doc 784, I/1/27, 6 U.N.C.I.O. Docs. 336 (1945); Doc. 885, I/1/ 34, 6 U.N.C.I.O. Docs. 387 (1945). See also Brownlie 1963, at 265–269. For a brief discussion of this issue in the context of information operations, see James N. Bond, Peacetime Foreign Data Manipulation as One Aspect of Offensive Information Warfare: Questions of Legality under the United Nations Charter Article 2(4), at 55–56 (June 14, 1996) (Advanced Research Project, United States Naval War College). 46 See, e.g., Dinstein 1994; Mrazek 1989; Randelzhofer 1995a, b.

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applies.47 In the CNA context, this understanding would limit the scope of inquiry to whether the operation amounts to a use of force. Of course, the meaning of ‘‘force’’ may prove a matter of some dispute, as may the precise boundaries of the Charter’s use of force sanctions, but if a CNA operation constitutes force, it will be deemed wrongful unless Charter-based. No further analysis is necessary. Although textually sound, the positivist approach fails to reflect the realities underlying uses of force. It evidences misguided fidelity to the failed constitutive endeavor to establish a Charter security schema that would generally dispense with the need for unilateral uses of force, except in aberrant situations necessitating immediate self-defense. The envisioned normative architecture presupposed an effective enforcement mechanism—collective response under Security Council control—that has only slowly, and somewhat haphazardly, begun to be realized in the last decade. Absent an authoritative coercive enforcement mechanism, strict adherence to the plain text meaning of Article 2(4) can actually operate as a counterpoise to the Charter’s world order aspirations. Specifically, adherence to a textual interpretation of the Charter security regime only allows either collective responses under Security Council mandate or defensive actions. During the Cold War, the Security Council was rendered impotent by bipolar competition. Despite the demise of bipolarity, the international community continues to struggle to forge consensus in the face of glaring acts of aggression, breaches of peace, or threats to peace. Inflexible understandings of Article 2(4)’s relationship to uses of force risk foreclosing unilateral or multilateral responses to deleterious situations that desperately demand community action, but upon which the Security Council has failed to act. Fortunately, the international community has not allowed itself to be crippled by the relative desuetude of the Charter security system. On the contrary, in many cases states have responded to situations, either individually or in concert, in which community interests were served by taking coercive measures not specifically provided for in the Charter. Such incidents combine to map out a complex operational code as to those coercive acts the international community, or at least the politically relevant members thereof, accepts as lawful. Over a decade ago, Professor Michael Reisman identified nine basic categories of unilateral uses of force which enjoy some degree of community support:

47

Unfortunately, this approach occasionally leads to tortuous efforts to justify operations, such as those in response to terrorist attacks, in Charter (usually self-defense) terms. A classic example would be the 1986 raid (Operation El Dorado Canyon) on Libya by U.S. aircraft in response to the terrorist bombing intended to kill U.S. servicemen at a disco in Berlin. On the operation and its justification, see President’s Address to the Nation, Apr. 14, 1986, reprinted in U.S. Exercises Right of Self-defense Against Libyan Terrorism, Dep’t St. Bull, at 1 (June 1986). Much attention has been paid to the fact that Libya was planning attacks on up to thirty U.S. diplomatic facilities worldwide. See Joint News Conference by Secretary Schultz and Secretary Weinberger, April 14, 1986, reprinted in U.S. Exercises Right of Self-defense Against Libyan Terrorism, supra, at 3 (June 1986).

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[S]elf-defense, which has been construed quite broadly; self-determination and decolonization; humanitarian intervention; intervention by the military instrument within spheres of influence and critical defense zones; treaty-sanctioned interventions within the territory of another State; use of the military instrument for the gathering of evidence in international proceedings; use of the military instrument to enforce international judgements; and counter measures, such as reprisals and retorsions.48

The majority of these actions would be difficult to justify under the Charter, absent a strained interpretive effort. As Professor Reisman notes, the categories themselves are not determinative.49 Instead, every threat or use of force is evaluated on its own merits based upon the context in which it occurs. Thus, for example, while the operational code acknowledges the lawfulness of humanitarian intervention in certain circumstances, in others it might be deemed unlawful—the operational code is contextual. Moreover, the categories in which uses of force are sometimes considered appropriate evolve. New categories, such as use of the military in cross border counter-terrorist operations, may emerge, while shifts in the nature and effectiveness of the Charter security scheme may diminish the acceptability of others, such as the unilateral use of the military instrument to gather evidence. Many criteria of lawfulness operate synergistically to contribute to the final assessment of legality, such as the imminence and severity of the situation being addressed, less coercive or less violent alternatives and the viability of community responses. Ultimately, though, such extra-Charter uses of force will fall outside the operational code if they fail to advance shared world order values. The point here is not to index the operational code vis-à-vis uses of force, but rather to simply highlight the fact that a Charter analysis cannot be performed in isolation of the constantly developing and evolving operational code.50 Article 2(4) continues to enjoy predominant prescriptive valence, and it remains appropriate to view the provision as a general prohibition on non-Charter uses of force. That said, it must be recognized that certain forceful acts that lie outside the narrow options available in the Charter nevertheless comport with the operational code. A useful approach may well be to apply a rebuttable presumption to uses of force not specifically consistent with the Charter security system. A presumption of unlawfulness would attach to any such use. The burden would then shift to the actor to justify its actions within the relevant international community. Given this analytical framework, the dispositive question is whether CNA constitutes use of force. Since the drafting of the UN Charter, the reach of the term ‘‘force’’ has proven contentious. The Vienna Convention on the Law of Treaties sets forth the core interpretive principle that international instruments are to be interpreted ‘‘in accordance with the ordinary meaning to be given to the terms of

48

Reisman 1985. See also Reisman 1984–1985; 1989. See Reisman 1985, at 282. 50 For an interesting projection of factors likely to affect the use of force in the future, see D’Amato 1998, at 1. 49

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the treaty in their context and in light of its object and scope.’’51 But what is the plain meaning of the term ‘‘force’’? Does it only extend to ‘‘armed’’ force, i.e. force applied by military units, or does it encompass other forms of coercion? In addressing this issue, some commentators point to the Charter itself,52 an approach consistent with the Vienna Convention’s inclusion of a treaty’s preamble, text, and annexes in its ‘‘context.’’53 For instance, the Preamble includes among Charter purposes the goal that ‘‘armed force … not be used save in the common interest …’’ If the Article 2(4) prohibition were intended to extend beyond armed force, then presumably the preamble, for reasons of internal consistency, would not have included the term ‘‘armed.’’ After all, the Charter’s articles are designed to effectuate its preambular aspirations. Thus, preambular terminology is logically interpreted more broadly than that contained in the articles. The wording of Article 44 further supports a restrictive interpretation. It states, ‘‘When the Security Council has decided to use force it shall, before calling upon a Member not represented to provide armed forces…’’ ‘‘Force’’ appears, as in Article 2(4), without the qualifier ‘‘armed,’’ but, as demonstrated by the reference to ‘‘armed forces,’’ clearly contemplates that the force used be armed. The Charter uses the term ‘‘armed force’’ twice,54 a fact which might seem to suggest the drafters intended to distinguish it from unqualified force after all. However, both cases involve Chapter VII enforcement, in which armed force is but one of multiple options available to the Security Council in responding to threats to the peace, breach of the peace, or acts of aggression. Read in context, they clearly refer to a particular point along the continuum of coercion. By contrast, because Article 2(4) precludes nothing but ‘‘force,’’ there was no need to distinguish it through qualification. While textual analysis is often telling, it is based on the somewhat suspect premise that a diverse group of diplomatic teams was thoroughly aware of the subtle nuances of language. This is so despite the fact that many members of the teams do not share English (or for that matter any language of the other authoritative texts—Chinese, French, Russian, and Spanish) as their first language.55 Of course, negotiating teams do obsess over terminological precision in order to avoid committing their state to unintended and undesired obligations. However,

51

Vienna Convention on the Law of Treaties, May 23, 1969, Article 31(1), 1155 U.N.T.S. 331 (1969). This point was reiterated by the International Court of Justice in The Competence of the General Assembly for the Admission of a State to the United Nations case. In that case, the ICJ noted that ‘‘the first duty of a tribunal which is called upon to interpret and apply the provisions of treaty is to endeavor to give effect to them in their natural and ordinary meaning in the context in which they occur.’’ General List No. 9, 1950 I.C.J. 4, 8 (Mar. 3) (advisory opinion). 52 See Randelzhofer 1995a, b, at 112; Wehberg 1951. 53 Vienna Convention, supra note 51, Article 31(2). 54 Id. Articles 41, 46. 55 U.N. Charter Article 111.

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should ambiguity or obscurity remain, interpretive recourse may be made to ‘‘the preparatory work of the treaty and circumstances of its conclusion.’’56 In the case of Article 2(4), the travaux préparatoires57 do shed considerable light on the subject. At the San Francisco Conference, the Brazilian delegation submitted amendments to the Dumbarton Oaks proposals that would have extended Article 2(4)’s range to economic coercion.58 Though the proposition received a majority vote in committee, the Conference declined adopting it by a vote of 26–2.59 Thus, analysis based on both UN Charter travaux and text leads to an interpretation excluding economic, and for that matter political, coercion from Article 2(4)’s prescriptive sphere. Other international instruments of the time also used the term ‘‘force’’ without qualification.60 In none of them does any support for inclusion of economic or political pressure appear. In fact, the terminological approach in one of the key constitutive documents of the time implies just the opposite. The Charter of the Organization of American States (as subsequently amended) avoids use of the naked term ‘‘force’’ altogether, instead separately referring to ‘‘armed force’’ and ‘‘coercive measures of an economic or political character.’’61 Its drafters appear to

56 Vienna Convention, supra note 51, Article 32. (‘‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable’’). 57 ‘‘Legislative history,’’ specifically the record of negotiations leading to final adoption of the Convention. 58 See Doc. 784, I/1/27, 6 U.N.C.I.O. Docs. 331, 334, 609 (1945). Originally, the Dumbarton Oaks Proposal for the prohibition read as follows: ‘‘All members of the Organization shall refrain from the threat or use of force in any manner inconsistent with the purposes of the Organization.’’ Doc. 1123 I/8, 6 U.N.C.I.O. Docs. 65, 68 (1945). 59 See Doc. 2, G/7 (e)(4), 3 U.N.C.I.O. Docs. 251, 253–54 (1945). 60 See, e.g., Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, Article 1, T.I.A.S. No. 1838, 21 U.N.T.S. 77: ‘‘… undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of this Treaty.’’ See also Pact of the League of Arab States, March 22, 1945, Article 5, 70 U.N.T.S. 238, which only speaks of force: ‘‘Any resort to force in order to resolve disputes arising between two or more member States of the League is prohibited.’’ This instrument was drafted contemporaneously with the U.N. Charter. 61 Charter of the Organization of American States, Apr. 30, 1948, T.I.A.S. No. 2361, 119 U.N.T.S. 3.

Article 18: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements. Article 19: No State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind.

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have been sensitive to the normative import of the distinction, an unsurprising fact in light of Brazil’s membership in the organization.62 In fairness, the restrictive interpretation has not enjoyed universal acceptance. The desire for a broader definition resurfaced 25 years after the San Francisco Conference during the drafting of the General Assembly’s Declaration on Friendly Relations. The Declaration expresses the use of force prohibition in terms identical to Article 2(4).63 During committee handling of the draft, differences of opinion again arose over whether the term ‘‘force’’ should extend to ‘‘all forms of pressure, including those of a political or economic character, which have the effect of threatening the territorial integrity or political independence of any State.’’64 Most Western States sought to limit the expression to armed force, in some cases linking the prohibition to the right to respond in self-defense pursuant to Article 51 of the Charter to an armed attack. In contrast, the bulk of African and Asian nations advocated a purpose-based interpretive analysis. By their reasoning, a desire to assure the political independence of States through protection of sovereign prerogative and territorial inviolability permeated Article 2(4). To the extent that economic and political coercion constituted a threat to those principles, the article, as well as the Declaration, should be interpreted to preclude such misdeeds. For proponents, interpretative endeavors, particularly when text is ambiguous, should not be foreclosed by travaux, but rather should reflect the underlying purposes of the article in the current international context. Latin American countries split on the issue. Ultimately, the debate proved impossible to resolve—the Declaration’s Principles, and the textual explication thereto, do not directly address the differences. However, much of the explanation of the Principle prohibiting resort to force is cast in terms relevant only to armed force.65 That the Declaration fails to cite economic or political measures in the Principle on the use of force, but does so with regard to the Principle imposing a duty not to ‘‘intervene in matters within the domestic jurisdiction of any State,’’66 strengthens the restrictive argument. Tellingly, a second General Assembly Resolution on the subject, this one issued in 1987, takes an analogous approach. In the Declaration on the Enhancement of the 62

Recall that Brazil had proposed that Article 2(4) of the U.N. Charter encompass economic coercion. See supra text accompanying note 58. 63 See Rauschning et al. 1997, prin. I, annex (The General Assembly ‘‘[s]olemnly proclaims the following Principles: 1. The Principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.’’). 64 U.N. GAOR Special Comm. On Friendly Relations, 24th Sess., I 14th mtg., U.N. Doc. A/ AC/25ISR.114 (1970). See also Report of the Special Comm. on Friendly Relations, U.N. GAOR, 24th Sess., Supp. No. 19, at 12, U.N. Doc. A/7619 (1969); Bowett 1972a, b. 65 See, e.g., ‘‘(a) war of aggression,’’ ‘‘irregular forces or bands,’’ ‘‘acts of civil strife or terrorist acts,’’ ‘‘military occupation,’’ ‘‘disarmament,’’ etc. Rauschning et al. 1997, prin. I, annex. 66 Id. For example, ‘‘[n]o State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.’’ Id.

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Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, ‘‘armed intervention’’ is tied to ‘‘interference or attempted threats against the personality of the State or against its political, economic and cultural elements,’’ whereas economic and political coercion are cited in the context of ‘‘the subordination of the exercise of … sovereign rights’’ and securing ‘‘advantages of any kind’’ from the target state.67 Again, while the Declaration does not definitively resolve the reach of the term ‘‘force,’’ its general tenor, and the varying contexts in which armed, economic, and political coercion arise, suggest that although economic and political coercion may constitute threats to international stability and therefore are precluded by the principle of non-intervention (discussed infra), the concept of the use of force is generally understood to mean armed force.68 The foregoing analysis shows that the prohibition of the threat or use of force includes armed, but not economic or political coercion.69 However, it does not demonstrate that the borders of ‘‘force’’ precisely coincide with armed force, i.e., physical or kinetic force applied by conventional weaponry. This reality has only recently proven of applicative import. Until the advent of information operations, most coercion could be handily categorized into one of several boxes, for few coercive options existed that could not be typed as political, economic, or armed in nature. Because there was little need to look beyond these genera, discourse about the lawfulness of State coercion, as illustrated supra, tended to revolve around them. If the act in question fell within the armed force box, it violated the prescription banning the use of force; if not, questions of legality had to be resolved by looking elsewhere.70 On rare occasions, the relatively bright line test for wrongful use of force proved inutile. For instance, in the Nicaragua case the International Court of Justice (ICJ), held that:

67

G.A. Res. 42/22, U.N. GAOR, 42d Sess., 73d plen. mtg., Agenda Item 131, annex, Article I } 7–8 (1988), reprinted in Rauschning et al. 1997, at 7. 68 As to both declarations, recall that by Article 31(3) of the Vienna Convention subsequent agreement regarding interpretation of a treaty is an appropriate interpretive consideration. See Vienna Convention, supra note 51, Article 31 (3). 69 On economic sanctions, see Szasz 1998, at 455. 70 This is not to say that international law scholars missed the distinction; it is only to say that it has attained particular significance in the last decade. For instance, Hans Kelsen noted: There are two kinds of force not exercised by use of arms: (1) an action of a state directed against another state which constitutes a violation of international law but which is not performed by use of arms; (2) a reprisal which does not involve the use of armed force. Article 2, paragraph 4, refers to the ‘use of force.’ It therefore prohibits both kinds of force. Hence, not only is the use of force prohibited but any action of a member state illegal under general international law which is directed against another state is prohibited by the Charter, and the member states are forbidden to resort not only to war but also to reprisals. Kelsen 1956. Ian Brownlie disagrees with this assessment, arguing that ‘‘there is no evidence … that it bears the meaning suggested by Kelsen.’’ Brownlie 1963, at 362.

22

1 Computer Network Attack and the Use of Force in International Law [W]hile arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all assistance given by the United States Government. In particular, the Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua … does not itself amount to a use of force.71

Assuming the Court accurately characterized the state of the law, the dimensions of the armed force box grew slightly. In what was tantamount to an application of agency theory, the Court determined that force apparently includes actively and directly preparing another to apply armed force, but not merely funding the effort. Nevertheless, despite the subtle shift in the understanding of force, prescriptive ratiocination continues to transpire within a familiar paradigm, that of distinguishing armed force from other tools of coercion. At least since promulgation of the Charter, this use of force paradigm has been instrument-based; determination of whether or not the standard has been breached depends on the type of the coercive instrument—diplomatic, economic, or military—selected to attain the national objectives in question. The first two types of instruments might rise to the level of intervention, but they do not engage the normatively more flagrant act of using force. However, despite instrument classing, in actual practice it does not follow that coercive acts involving armed force necessarily operate at counter-purposes with community values (they are condoned when consistent with the operational code). Even when they do, it is not always the case that they do greater violence thereto. For instance, a temporally and spatially limited border incursion is probably a lesser threat to either international peace and security or the right of states to conduct their affairs free from outside interference than was the 1973–1974 Arab oil embargo.72 Yet, the prescriptive framework would proscribe the former, but not the latter.73 In order to understand the distinction, one must first inquire into why the limitation exists at all. International law regarding coercion seeks to foster or frustrate consequences. Although, as noted in the discussion of operational codes, normative architectures evolve over time as community aspirations shift in one direction or another, certain shared community values, albeit often aspirational, permeate world order prescription. They include, inter alia, physical survival and security for both individuals and the tangible objects on which they rely, human dignity (particularly that expressed in human rights norms), social progress and quality of life, and ‘‘the right of peoples to shape their own political

71

Military and Paramilitary Activities (Nicar. v. D.S.), 1986 I.C.J. 4,119, (June 27). Note that the ICJ was not actually applying Article 2(4) qua 2(4) because application of the Charter was barred by the U.S. acceptance of jurisdiction (pursuant to Article 36(2) of the Court’s Statute) only on the condition that all States involved in the case be party to any multilateral treaty used by the Court to adjudicate the issue. Therefore, the Court applied the customary international law prohibition on the resort to force. 72 For a discussion of force as extending beyond armed force, see Paust and Blaustein 1974. 73 On the appropriateness of applying the economic instrument, see Cameron 1991.

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community.’’74 In a sense, these aspirations echo a human hierarchy of need. International law seeks to advance them to a degree largely determined by both their position in the hierarchy of need and the nature of the systemic constraints that the international system imposes on their pursuit. The primary constraint, the determinative reality, is that these aspirations must be pursued within a state-based international structure. This structure contains many obstacles, not the least of which is interstate rivalry rift with zero-sum thinking.75 The UN Charter reflects this understanding by including in its purposes the maintenance of international peace and security, development of friendly relations among nations, achievement of international cooperation in solving international problems, and harmonization of the actions of nations.76 While these appear to be goals in and of themselves, they are actually intermediate goals in the attainment of the ultimate ends just articulated. They are community value enablers. The prohibition on the use of force is designed to advance these intermediate objectives (and occasionally the ultimate aims) by restricting those acts most likely to endanger them—uses of force. In fact, the international community is not directly concerned with the particular coercive instrumentality used (force in this case), but rather the consequences of its use. However, it would prove extraordinarily difficult to quantify or qualify consequences in a normatively practical manner. Undesirable consequences fall along a continuum, but how could the criteria for placement along it be clearly expressed? In terms of severity? Severity measured by what standard of calculation? Harm to whom or what?77 The difficulty in looking to consequences themselves as criteria for calculating lawfulness led the Charter drafters to use prescriptive short-hand to achieve their goals. Because force represents a consistently serious menace to intermediate and ultimate objectives, the prohibition of resort to it is a relatively reliable instrument-

74

These aims derive from those expressed in the Preamble to the U.N. Charter: [T]o save succeeding generations from the scourge of war, which twice in our life-time has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.

U.N. Charter preamble, art. X, para X. The final aim was perceptively articulated in Reisman 1991. To a very great extent, these shared values overlap. 75 Of course, the aims are perhaps at greater risk from internal sources, but Westphalian statecentrism, with its emphasis on the principle of sovereignty, has held back the progress of international law in responding to internal threats. Fortunately, the effort to limit inter-state conflict usually advances community-wide aspirations without imperiling the internal autonomy that sovereignty cherishes. 76 U.N. Charter Article 1. 77 Moreover, a purely consequence-based standard would risk falling prey to dissonant (e.g., cultural) valuation paradigms. On the subject of valuation paradigms, see Schmitt 1999.

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based surrogate for a ban on deleterious consequences. It eases the evaluative process by simply asking whether force has been used, rather than requiring a far more difficult assessment of the consequences that have resulted. Of course, the use of force can cause widely divergent results depending on the weapon used, scale of attack, and nature of the target, as can economic coercion, which may result in everything from financial uneasiness to the collapse of an economy. Nevertheless, instrument-based evaluation is merited in the case of the former, but not the latter, by virtue of its far greater consequence-instrument congruence. Armed coercion usually results in some form of physical destruction or injury, whereas economic (or political) coercion seldom does. Additionally, the risk of an escalating conflict from a use of force ordinarily exceeds the risk from economic or political coercion because force strikes more directly at those community values at the top of the human hierarchy of need, in particular survival. The fact that the consequences of the use of force are almost immediately apparent, whereas economic or political consequences, although severe, emerge much more slowly, and thereby allow opportunity for reflection and resolution, compounds the danger of escalation. An even more basic problem is pinning down the cause and effect relationship when applying economic and political coercion. During the time lag between the initiation of the coercion and the emergence of consequences, intervening factors may enter the picture without which the consequences would not have occurred. Because the results of applying economic and political instruments generally constitute lesser threats to shared community values, the use of force standard serves as a logical break point in categorizing the asperity of particular coercive acts. Any imprecision in this prescriptive short-hand is more than outweighed by its clarity and ease of application. What matters, then, are consequences, but for a variety of reasons prescriptive shorthand based upon the instrument involved classifies coercive acts into two categories—those the community most abhors (force), and all others (which may in themselves violate less portentous community prescriptions). Computer network attack challenges the prevailing paradigm, for its consequences cannot easily be placed in a particular area along the community values threat continuum. The dilemma lies in the fact that CNA spans the spectrum of consequentiality. Its effects freely range from mere inconvenience (e.g., shutting down an academic network temporarily) to physical destruction (e.g., as in creating a hammering phenomenon in oil pipelines so as to cause them to burst) to death (e.g., shutting down power to a hospital with no back-up generators). It can affect economic, social, mental, and physical well-being, either directly or indirectly, and its potential scope grows almost daily, being capable of targeting everything from individual persons or objects to entire societies. Note that Article 41 of the Charter cites ‘‘interruption of … communication’’ as a ‘‘measure not involving armed force.’’78 Certainly, some forms of computer

78

U.N. Charter Article 41.

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network attack would fall in the ambit of this characterization. However, many forms would not. More to the point, the Charter drafters did not contemplate CNA. Therefore, to reason that CNA is a ‘‘measure not involving armed force’’ by virtue of Article 41 is over-reaching. So how should computer network attack best be characterized? As a use of armed force? As force? As some nascent modality of inter-State coercion which exists in a normative void? One narrow category of computer network attack is easily dealt with. CNA specifically intended to directly cause physical damage to tangible property or injury or death to human beings is reasonably characterized as a use of armed force and, therefore, encompassed in the prohibition. Thus, in the examples above, the pipeline destruction and the shutting of power to the hospital are examples of CNA which the actor knows can, and intends to, directly cause destruction and serious injury. Armed coercion is not defined by whether or not kinetic energy is employed or released, but rather by the nature of the direct results caused, specifically physical damage and human injury. Instrumentalities that produce them are weapons. There is little debate about whether the use of chemicals or biologicals falls within the meaning of armed force, even though the means that cause the injury or death differ greatly from those produced by kinetic force.79 Similarly, there was little doubt that neutron bombs constitute weapons, nor has controversy over the classification as weapons of the new varieties of non-lethals (many of which do not release kinetic energy as a mode of effect) surfaced.80 That computer network attack employs electrons to cause a result from which destruction or injury directly ensues is simply not relevant to characterization as armed force. The dilemma lies beyond this limited category of computer network attacks. How should computer network attacks which do not cause physical damage or injury, or do so indirectly, be classed vis-à-vis the prohibition on the use of force? Unless the international community is willing to adopt a de novo scheme for assessing the use of inter-state coercion, any justification or condemnation of CNA must be cast in terms of the use of force paradigm. In that computer network attack cuts across the instrument-based distinction employed as prescriptive short-hand, it becomes necessary to shift cognitive approach if one wishes to continue to operate within the existing framework. The key to doing so lies in revisiting the ‘‘force’’ box. As the discussion has illustrated, the controversy surrounding the meaning of the term was not so much whether the concept was limited to armed force, but rather whether it included economic coercion. To the extent that the qualifier ‘‘armed’’ was cited, it was done in order to counter the argument for extension. There was no need to look beyond armed force because intermediate forms of coercion such as CNA were not generally contemplated. Yet, the holding of the ICJ in the Nicaragua case with regard to arming and training the contras suggested that other forms of ‘‘force’’ were not necessarily excluded. Therefore, the use of force line must lie somewhere between economic coercion and the use of armed

79 80

See Brownlie 1963, at 362. On non-lethal weapons, see Duncan 1998.

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force. The question becomes how to locate the point of demarcation, at least with regard to this new genre of coercion. Perhaps the best approach is to start by reflecting upon the underlying motivation for the instrument-based distinctions: consequences. This is an imprecise endeavor, for, as discussed, the instruments do not precisely track the threats to shared values which, ideally, the international community would seek to deter. Nevertheless, if commonalities between typical consequences for each category can be articulated, perhaps CNA can be classed according to consequence affinity with the current prescriptive distinguishers. Economic and political coercion can be delimited from the use of armed force by reference to various criteria. The following number among the most determinative: (1) Severity: Armed attacks threaten physical injury or destruction of property to a much greater degree than other forms of coercion. Physical well-being usually occupies the apex of the human hierarchy of need. (2) Immediacy: The negative consequences of armed coercion, or threat thereof, usually occur with great immediacy, while those of other forms of coercion develop more slowly. Thus, the opportunity for the target state or the international community to seek peaceful accommodation is hampered in the former case. (3) Directness: The consequences of armed coercion are more directly tied to the actus reus than in other forms of coercion, which often depend on numerous contributory factors to operate. Thus, the prohibition on force precludes negative consequences with greater certainty. (4) Invasiveness: In armed coercion, the act causing the harm usually crosses into the target state, whereas in economic warfare the acts generally occur beyond the target’s borders. As a result, even though armed and economic acts may have roughly similar consequences, the former represents a greater intrusion on the rights of the target state and, therefore, is more likely to disrupt international stability. (5) Measurability: While the consequences of armed coercion are usually easy to ascertain (e.g., a certain level of destruction), the actual negative consequences of other forms of coercion are harder to measure. This fact renders the appropriateness of community condemnation, and the degree of vehemence contained therein, less suspect in the case of armed force. (6) Presumptive Legitimacy: In most cases, whether under domestic or international law, the application of violence is deemed illegitimate absent some specific exception such as self-defense. The cognitive approach is prohibitory. By contrast, most other forms of coercion—again in the domestic and international sphere—are presumptively lawful, absent a prohibition to the contrary. The cognitive approach is permissive. Thus, the consequences of armed coercion are presumptively impermissible, whereas those of other coercive acts are not (as a very generalized rule).

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These consequence commonalities can serve as the ties between CNA and the prevailing instrument-based prescriptive shorthand.81 By this scheme, one measures the consequences of a computer network attack against the commonalities to ascertain whether they more closely approximate consequences of the sort characterizing armed force or whether they are better placed outside the use of force boundary. This technique allows the force box to expand to fill lacunae (that became apparent upon the emergence of coercive possibilities enabled by technological advances) without altering the balance of the current framework—the growth is cast in terms of the underlying factors driving the existing classifications. How might this technique operate? In determining whether an opponent’s computer network attack (or threat thereof) fell within the more flexible consequence—based understanding of force (or whether an action being considered by one’s own information warriors does), the nature of the act’s reasonably foreseeable consequences would be assessed to determine whether they resemble those of armed coercion. If so, extension of the use of force prohibition to the act would be justified. If not, wrongfulness under international law would have to be determined by resort to prescriptive norms other than that prohibiting force. Consider two apposite examples. In the first case, computer network attacks disable a busy air traffic control (ATC) system during horrendous weather. An airliner crashes and deaths result. No kinetic force has been used to destroy the airliner, but CNA was plainly the proximate cause of the tragedy. This action would be considered a use of force. The severity of the consequences, multiple deaths and physical destruction, rises to a level equal to that of armed coercion. The technique did not permit sufficient opportunity to defuse the crisis before the consequences occurred, and, although CNA did not directly target the aircraft’s on-board systems, the crash would not have occurred but for the attack on the ATC assets. Furthermore, in order to cause the damage, signals had to be transmitted across political borders. The consequences of the attack are easily measurable (in terms of human and property loss), and, although attempts to harm others through

81

Arguably, responsibility is a seventh commonality. Armed coercion is the exclusive province of states; only they may generally engage in uses of force across borders, and in most cases only they have the ability to do so with any meaningful impact. By contrast, non-governmental entities are often capable of engaging in other forms of coercion (propaganda, boycotts, etc.). Therefore, with armed coercion the likelihood of blurring the relative responsibility of the State, a traditional object of international prescription, and private entities, usually only the object of international administration, narrows. In sum, the consequences of armed coercion are more susceptible to being charged to the State actor than in the case of other forms of coercion. However, this is an issue of assessing State responsibility, not lawfulness. It is a practical challenge, not a normative one.

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their computers and computer networks is a relatively new technique, there is a growing body of law in many countries criminalizing such activities.82 Contrast this analysis with that addressing an attack on a university computer network designed to disrupt military related research occurring in campus laboratories. Severity, considered in the context of shared values, falls significantly below that of armed coercion. No physical damage or measurable suffering occurs, at least in the short term. The desired outcome, diminished capability on the battlefield, is remote from the act, and it is indirect in that it will depend on a number of indeterminacies—the ability to regenerate data, the possible existence of other research efforts moving towards the same conclusions, the likelihood the project would have been funded through entry into the inventory, etc. Although the transmission of the signal is intrusive and presumptively illegitimate, metering the consequences will prove difficult. In sum, the underlying nature of the consequences resulting from this particular information operation fails to sufficiently resemble that characteristic of uses of armed force. Extension of the instrumentbased use of force distinguisher would be inappropriate. It may appear torturous to use the prescriptive shorthand (instrument—based classification) as a point of departure, rather than simply ask to what degree the consequences of computer network attack threaten shared community values. One might simply look no further than the severity of consequences.83 Indeed, at conferences and among those who have considered the subject in any depth, there is a tendency to take this stance when struggling with the dilemma of how to account for non-kinetically based harm with a system designed to regulate kinetic activities. The flaw in doing so lies in the fact that it calls for a new normative architecture altogether to handle such actions, an architecture that amounts to more than an interpretive dilation of the use of force standard. It would constitute a new standard. By contrast, reference to the instrument-based shorthand facilitates greater internal consistency and predictability within the preexisting framework for interstate coercion. It allows determinations on the inclusivity of the use of force to more closely approximate the current system than analysis based solely on consequentiality would allow. As a result, subscription by the international 82

For summaries of applicable domestic law, see Joint Chiefs of Staff, Information Assurance: Legal, Regulatory, Policy and Organization Considerations (3rd ed. 1997), ß 4; Scott 1998. As to responsibility (see supra note 78 and accompanying text), in the macro sense it will be difficult to assess because most computer network attacks can be conducted by non-governmental individuals with access to the requisite hard and software; it requires no special infrastructure available only to a government. However, though this factor would augur against characterizing computer network attack in the abstract as a use of force, because it is technologically-dependent, technological means may be able to reliably ascertain the source of the attack as a specific sate or agent thereof. To the extent this is true of a particular method of attack, it increases the appropriateness of labeling it a use of force. 83 Consequences should not be confused with motivation (justification). The operational code operates based primarily on the latter; it looks to the rationale for the use of force to justify it, not what its consequences are.

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community is more likely, and application should prove less disruptive and controversial. This is not to say that greater focus on core objectives, on consequentiality in its pure form, is not to be sought. It is only a recognition that until the international community casts off its current cognitive approach, community values are, for practical reasons, best advanced in terms of that which is familiar and widely accepted. It should be noted that schema-imbuing consequences, rather than acts, with normative valence are nothing new. In the jus in bello, consequence-based analysis predominates. The principle of proportionality, for instance, balances positive consequences (military advantage) against harmful ones (collateral damage and incidental injury).84 Additionally, Protocol I to the Geneva Conventions prohibits starvation of civilians, causation of ‘‘widespread, long-term and severe damage’’ to the environment, and attacks on works and installations containing dangerous forces which ‘‘may cause the release of dangerous forces and consequent severe losses among the civilian population.’’85 Similarly, the Environmental Modification Convention forbids the use of any hostile environmental modification technique that has ‘‘widespread, long-lasting or severe effects.’’86 More to the point, consequentiality arguably dominates analysis of inter-state coercion short of the use of force, for once an act slips out of the force box into a category containing other coercive methods, the issue of the instrument fades in favor of consequences, specifically the consequence of intervention in the affairs of other states. Of course, armed coercion can constitute intervention, but the modality of coercion rather than the fact of intervention is determinative. By contrast, in considering non-forceful coercion, the start point is whether it amounts to prohibited intervention. For instance, the Declaration on the Inadmissibility of Intervention provides that ‘‘[n]o State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind …’’87 It is not the fact of economic coercion, but rather its consequence that matters. Thus, while certain techniques may be

84

Proportionality is a customary international law principle, codified in 1977 Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Articles 51.5(b) and 57.2(iii), reprinted in 3 Harold S. Levie, Protection of War Victims: Protocol 1 to the 1949 Geneva Conventions 174, 337 (1980). [hereinafter Additonal Protocol I]. It is defined as ‘‘[t]he principle that seeks to limit damage caused by military operations by requiring that the effect of the means and methods of warfare used must not be disproportionate to the military advantage sought.’’ Verri 1992. 85 Additional Protocol I, supra note 84, Articles 54, 55 and 56. 86 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, Article I. para 1, 31 U.S.T.S. 333, 1108 U.N.T.S. 151, 16 I.L.M. 88, 91 (1977). 87 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 12, U.N. Doc. A/6220 (1965), reprinted in Rauschning et al. 1997, at 26.

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prohibited by a particular international agreement,88 the encompassing norm is consequence-based. Arguably the approach to CNA and the use of force suggested in this essay falls within the camp of ‘‘radical teleological interpretation,’’ for ultimate purposes are being identified in order to lend prescriptive substance to a treaty provision.89 Yet, this is not a case of crafting new prescriptions, but rather one of simply determining how to address activities not contemplated at the time the Charter was promulgated by resort to Charter norms. Clearly, had CNA posed a significant threat in 1945, the drafters would have crafted a standard against which it could be prescriptively measured. Moreover, because the Charter is the constitutive instrument of an international organization, flexibility in interpretive spirit is apropos. Such documents must remain malleable if the organization in question is to remain relevant to changing international circumstances. As one distinguished commentator has noted, ‘‘[T]his [flexible] approach has been used as a way of inferring powers, not expressly provided for in the relevant instruments, which are deemed necessary in the context of the purpose of the organization.’’90 Finally, since the approach is consequence, vice instrument, based, it will forfeit much of the clarity that the latter mode of analysis offered; more gray area cases will occur. This is particularly true in the absence of state practice, and the responses thereto necessary to permit an operational code to emerge from the fog of inter-State relations. In assessing individual instances of CNA, then, the question is how to resolve the unclear cases. Should a presumption operate in favor of inclusion or exclusion of CNA in the use of force box? While policy concerns may impel a particular state towards one position or the other, the security framework of the Charter would be best effected by application of an inclusivity presumption. If the debate is about whether a particular information operation is or is not a use of force, then the consequences of that operation are likely such that they would be violative of the prohibition on intervention at any rate. The issue is probably not legality, but rather illegality by what standard. Therefore, to the extent that treaty prohibitions have any deterrent effect, inclusivity would foster shared community values. The contrary position would assert that labeling uncertain cases as a use of force would be destabilizing, for the victim would be more likely to respond forcefully. However, as to be discussed, it is not the use of force, but rather ‘‘armed attack’’ which gives a state the right to respond 88

For example, regarding international telecommunications law see International Telecommunication Convention (with Annexes, Final Protocol, Additional Protocols, Resolutions, Recommendations and Opinions), Oct. 25, 1973, 28 U.S.T. 2495, 1209 U.N.T.S. 32; International Telecommunication Convention, Nov. 6, 1982, S. Treaty Doc. No. 99–6. 89 See Brownlie 1990. 90 Shaw 1997. The comment is made with particular regard to subsequent practice. Professor Shaw cites, as support for his proposition, Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11); Competence of the General Assembly for the Admission of a State to the United Nations, 1950 I.C.J. 4 (Mar. 3); Certain Expenses of the U.N., 1962 I.C.J. 151 (July 20); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (June 21).

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in self-defense. An operation that generates doubt as to its status under use of force typology would surely not rise to the level of an armed attack. Moreover, this position does not leave the international community remedy-less. Under Article 39, the Security Council may mount forceful responses even to events that threaten the peace. Most gray area cases would at least rise to this level.91 The prohibition on the use of force enjoys normative valence beyond its Charter context. It also constitutes customary international law.92 Customary law has both objective and subjective components: it must evidence consistent state practice over time by a meaningful group of states and opinio juris sive necessitatis93 must exist.94 In evaluating the actions of the United States in the Nicaragua case, the International Court of Justice held that a prohibition on the use of force did exist in customary law (and that the U.S. had violated it).95 In light of both the Court’s conclusory finding regarding state practice96 and its heavy reliance on non-binding General Assembly Resolutions to establish the requisite opinio juris,97 the legal reasoning underlying the judgement is suspect. Nevertheless, a majority of commentators concur in the ultimate finding that the prescription enjoys customary status.98 The problem in application of the customary standard to CNA is that the customary and Charter prescriptions, while similar, do not coincide. The ICJ itself acknowledged this point in the Nicaragua case when it opined: [O]n the question of the use of force, the United States itself argues for a complete identity of the relevant rules of customary international law with the provisions of the Charter. The Court has not accepted this extreme contention … However … the Charter gave expression in this field to principles already present in customary international law, and that law has in the subsequent four decades developed under the Charter to such an extent that a number of the rules contained in the Charter have acquired a status independent of it.99

While state consent to be bound by a treaty can be interpreted as consent to reasonable application of accepted rules of interpretation, the state practice and opinio

91

The obvious danger, though, is that the international community will not react, possibly because the actor is a member of the P-5 and vetoes any action. This would encourage states to respond unilaterally at lower levels of force. 92 See Statute of the International Court of Justice, June 26, 1945, Article 38.1(b), 832 U.S.T.S. 993, 1978 Y.B.U.N. 1197. Customary law is a ‘‘general practice accepted as law.’’ Id. 93 Belief that compliance with the practice is out of a sense of legal obligation. 94 See North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 44 (Feb. 20). 95 On the issue of the customary nature of the prohibition, see 1986 I.C.J. 4, 98–101, 147. 96 Id. at 100. The Court did not actually catalogue state practice; instead, it merely noted that state conduct was generally consistent with the rule. Randelzhofer labels this line of argument ‘‘highly disputable’’. Randelzhofer 1995a, b, at 126. 97 The Court cited the unanimous adoption in 1970 of the Declaration on Friendly Relations, Rauschning et al. 1997. See 1968 I.C.J. 4, 100. Recall that the Declaration reiterated the language of Article 2(4). For criticism of this approach, see D’Amato 1987. On the relationship between the Charter and the Declaration, see Kirgis 1987. 98 See Brownlie 1963, at 113; Dinstein 1994, at 93; Malanczuk 1997. 99 1968 I.C.J. 4, 96–97.

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juris requirements of customary international law may lead over time to divergence among formerly coincident norms. Treaty law is both more and less flexible than its customary law counterpart. On the one hand, it is flexible in its susceptibility to interpretation in accordance with evolving context; such context is consequential even in the absence of any shift in state practice (perhaps the opportunity for state practice has not presented itself). On the other hand, it is inflexible in the sense that the prescription itself is frozen beyond interpretation thereof; new norms require new consent. Customary law, by contrast, is unlimited in scope, but limited by the fact that it cannot react to evolving context absent practice and opinio juris. Of course, customary law responds to change in some degree. For instance, the prohibition of the use of force would extend to employment of any new weaponry that fell within the general ambit of armed force, for in the same way that Article 2(4) always contemplated armed coercion, so too has the customary standard. Indeed, because the Nicaragua decision was based on customary international law, it is reasonable to extend the concept of force to the direct support (arming/ training) of those who employ it. Nevertheless, there is no basis in state practice for extension beyond the immediate periphery of armed force. In particular, the absence of any significant CNA practice renders it inappropriate to do so. A customary norm may develop over time, but it does not exist at present. Neither practice, nor opinio juris, is in evidence. This is not to say that CNA exists wholly beyond the customary international law governing the use of force. However, whereas the approach proposed in this essay would extend the treaty application to computer network attacks causing consequences which approximated the nature of those involving armed force, application of the customary norm to CNA would require it to be characterized as a new technique of armed force. In order to rise to this level, it must cause not analogous consequences, but identical results, specifically direct human injury or physical damage to tangible property. Thus, it must fall within the narrow category of computer network attacks that are appropriately characterized as an application of armed force.100 A final prospective point regarding customary international law lies in its greater potential scope. In responding to incidents of computer network attack, the effect of Article 2(4) can never advance beyond the interpretive boundaries of the existing use of force cognitive paradigm. However, over time a new customary norm may emerge that addresses CNA in and of itself, quite aside from its use of force implications. Such a norm may very well prove more restrictive than current prescriptions. At the present, the possibility is purely speculative. Note that the prohibition on resort to force enjoys more than customary standing. It has been identified by both the International Law Commission101 and 100

See supra text accompanying notes 77–80. In the Commission’s commentary on the draft articles of the Law of Treaties (Vienna Convention), the Charter’s prohibition of the use of force was cited as ‘‘a conspicuous example’’ of jus cogens. See Report of the International Law Commission, 18th Sess., 1966 (II) I.L.C.Y.B. 247. When such peremptory norms emerge, any existing treaty in conflict with them become void and terminate. See Vienna Convention, supra note 51, Article 53. 101

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the International Court of Justice102 as jus cogens – ‘‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the character.’’103 In essence, jus cogens norms are customary norms writ large, for they are not susceptible to avoidance through party consent (e.g., in the form of a later treaty). Given their customary character, the treatment of computer network attack in the jus cogens context mirrors that with regard to customary international law. Therefore, this specific peremptory norm extends to CNA rising to the level of a de facto use of armed force, but not to other forms of computer network attack. Finally, although this essay centers on the use of force, it must be understood that the fact that a computer network attack does not violate peremptory, customary, or conventional use of force norms does not necessarily render CNA consistent with international law. In particular, an attack may amount to prohibited intervention in the affairs of other states. As noted by the ICJ in the Nicaragua case, ‘‘[t]he principle of non-intervention right of every sovereign State to conduct its affairs without outside interference … it is part and parcel of customary international law.’’104 The obligation to refrain from intervention finds further expression in various General Assembly Resolutions, most notably the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty105 and the Declaration on Friendly Relations.106 CNA may be particularly appropriate for consideration in the context of intervention, due to its reliance on technology. Although the technology necessary to commit computer network attack is increasingly widespread,

102 103 104 105

See 1968 I.C.J. 4, 100. Vienna Convention, supra note 51, Article 53. 1968 I.C.J. 4, para 202. Declaration on Inadmissibility of Intervention, supra note 87,

1. [N]o State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned. 2. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind … 5. Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State. Id. at 26. Note that although the United States voted in favor of the resolution, it stated that the resolution was ‘‘only a statement of political intention and not a formulation of law.’’ U.N. GAOR, 20th Sess. at 436, U.N. Doc. A/C.1/SR. 1423. That said, the Declaration on Friendly Relations purports to articulate basic principles of international law, including that of non-intervention. Rauschning et al. 1997. The United States offered no statement challenging that characterization. 106 See Rauschning et al. 1997.

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technologically advanced states still maintain an edge in their ability to use it. This disparity in access to the technique heightens its inadmissibility as a form of coercion.107

1.3 Responding to Computer Network Attacks with Force While an in-depth analysis of the appropriateness of responding to computer network attack with force is beyond the purview of this essay, a brief outline of the subject is useful to help place the use of force prohibition in context. With the exception of the operational code discussed supra, the framework for appropriate uses of force generally resides within the UN Charter. The Charter admits of only two situations allowing the use of force—Security Council authorized operations pursuant to Chapter VII and self-defense in accordance with Article 51. Under Chapter VII, the Security Council has the authority to ‘‘determine the existence of any threat to peace, breach of peace, or act of aggression.’’108 When the Council does so, it may call upon member states of the United Nations to apply ‘‘measures not involving the use of armed forces’’ to resolve the situation.109 Note that the measures contemplated include ‘‘complete or partial interruption of … telegraphic, radio, or other means of communication,’’ techniques likely to involve CNA. If non-forceful measures have proved inadequate, or if the Council believes that they would be futile, it may ‘‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’’110 Responses may include information operations falling into either the ‘‘not involving armed force’’ or ‘‘armed force’’ category, as long as they are conducted in accordance with methods and means limitations.111 To the extent that the type 107 In the Corfu Channel case, the International Court of Justice held, in response to the United Kingdom’s argument that it had entered Albanian waters to seize evidence, that, ‘‘[i]ntervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful states and might easily lead to perverting the administration of international justice itself.’’ The Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 35 (Apr. 9). 108 U.N. Charter Article 39. For an excellent commentary on the article, see Frowein 1995, at 605. 109 U.N. Charter Article 41 (According to the article, ‘‘[t]hese may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’’). 110 U.N. Charter Article 42 (‘‘Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’’). 111 When engaged as combatants, U.N. forces follow the Guidelines for U.N. Forces Regarding Respect for International Law (FAD/TM, May 1996, 005797) (on file with Author). On the applicability of the law of armed conflict to peace operations, see Palwankar 1993, at 227; Memorandum of the ICRC to the Governments of the States Party to the Geneva Conventions and Members of the United Nations on the Applicability of the Geneva Conventions by the Military Units Placed at the Disposal of the United Nations, Nov. 10, 1961, reprinted in Int’l Rev. Red Cross, Dec. 1961, at 490.

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of operation falls squarely within the mandate of the Security Council Resolution authorizing the action, the distinction between the two categories is not particularly relevant. However, when does a computer network attack amount to a threat to peace, breach of peace, or act of aggression such that the Council may authorize a response by armed force? The answer can only be provided by the Security Council, for despite attempts by some states to imbue the provision with greater clarity during drafting of the Charter, the member states decided to allow the Council wide discretion by leaving the terms relatively undefined.112 In 1974, the General Assembly defined the term aggression as ‘‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations …’’113 Cast in terms of ‘‘armed’’ force, acts of aggression would only include those forms of CNA that rise to the level of armed force by

112

Proposals were made by Bolivia [see Doc. 2 G/14 (r), 3 U.N.C.I.O. Docs. 585 (1945)], the Philippines [see Doc. 2 G/14 (k), 3 U.N.C.I.O. Docs. 538 (1945)], and Czechoslovakia [see Doc. 2 G/14 (b), 3 U.N.C.I.O. Docs. 469 (1945)]. The Bolivian proposal was supported by Columbia, Egypt, Ethiopia, Guatemala, Honduras, Iran, Mexico, New Zealand, and Uruguay. See Doc. 442 III/3/20, 12 U.N.C.I.O. Docs. 341 (1945). The U.S. and U.K. opposed a delineation of acts of aggression on the ground that doing so might force responses by the Security Council that would not otherwise be justified. Id. at 341–342. Ultimately, the proposal for defining aggression was rejected by a 22–12 vote. See Doc. 502/3/22, 12 U.N.C.I.O. Docs. 349 (1945). 113 Definition of Aggression, G.A. Res. 3314 (XXIX), Article 1, U.N. GAOR, 29th Sess., Supp. No. 31, at 142, U.N. Doc. A/9631 (1975), 13 I.L.M. 710 (1974), reprinted in Rauschning et al. 1997, at 13. Judge Schwebel of the United States addressed the significance of the resolution in his dissent in the Nicaragua case. The significance of the Definition of Aggression – or of any definition of aggression – should not be magnified. It is not a treaty. It is a resolution of the General Assembly which rightly recognizes the supervening force of the United Nations Charter and the supervening authority in matters of aggression of the Security Council. The Definition has its conditions, its flaws, its ambiguities and uncertainties. It is open ended. Any definition of aggression must be, because aggression can only be ultimately defined and found in the particular case in light of its particular facts. At the same time, the Definition of Aggression is not a resolution of the General Assembly which purports to declare principles of customary international law not regulated by the United Nations Charter … This resolution rather is an interpretation by the General Assembly of the meaning of the provisions of the United Nations Charter governing the use of force … 1968 I.C.J. 4, 345.

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virtue of their intent to cause direct damage or injury.114 However, while all acts of aggression constitute breaches of the peace, or threats thereto, the obverse is not true; threats to the peace do not necessarily amount to aggression. Aggression is a pejorative term that implies fault; it imposes responsibility. A threat or breach of the peace, by contrast, may or may not be susceptible to the determination of blame, but nevertheless may merit a forceful community response. Moreover, while attaching responsibility by labeling an act aggressive requires that armed force have occurred, threatening or breaching of the peace need not. The mere fact that the peace is threatened is enough for the Security Council to engage the matter. But what is meant by ‘‘peace’’? Is it the absence of inter-state violence or does it envision something broader, such as human well-being or community cooperation? Article 1(2), for instance, speaks of ‘‘develop[ing] friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…’’ in order to ‘‘strengthen universal peace.’’115 Nevertheless, an overly expansive understanding of the concept would fly in the face of the sovereignty notions that pervade international law. That being so, the better interpretation seeks consistency with the Charter provision in which sovereignty concerns have already been balanced against shared community values, Article 2(4)’s prohibition on the use of force. In the Charter context, then, peace may best be defined as the absence of the use of force, whether the use of that force is legitimate or not. Article 39 represents a value choice in favor of community, vice unilateral, replies to uses of force. By the breach of peace standard, the Security Council could react forcefully pursuant to Article 42 to a computer network attack that amounted to a use of force as described above in the Article 2(4) context. Of much greater significance to information operations is the threat to the peace standard. It allows the Security

114 In Article 3, the General Assembly offered examples of aggression: Any of the following acts, regardless of a declaration of war, shall be subject to and in accordance with the provisions of Article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another state … or any annexation …; (b) Bombardment … against the territory of another State or the use of any weapons by a State against the territory of another State; (c) … blockade…; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond term of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Definition of Aggression, supra note 113, art. 3. 115 U.N. Charter Article 1, para 2.

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Council to authorize a response by force to any situation that might provoke a breach of the peace (use of force). Legality, or lack thereof, of the prospective forceful response (the breach of the peace) to the provocation is not determinative as to whether a threat to the peace exists.116 The question of threat is factual, not juridical. To complicate matters, the Security Council finds such threats with a fair degree of ease. For example, in 1991, the Council characterized fighting between the Yugoslavian government and the break-away states of Croatia and Slovenia as a threat to peace, most likely due to fear that this internal armed conflict might eventually risk involvement from outside the country.117 Other examples of the Security Council finding threats to the peace in the last decade include, inter alia, the anarchy in Somalia,118 civil war in Liberia,119 and even the refusal of the Libyan government to turn over suspects in the Pan Am Flight 103 bombing.120 Given this liberality, many forms of computer network attack, whether a use of force or not, could comprise a threat to the peace. Each would have to be evaluated in context, the permutations of which are infinite—time, place, target, actor, consequence, etc. What might cause one target state to react forcefully at a certain time or in particular circumstances might be perceived as relatively unimportant by another. Certainly, any serious CNA conducted by contenders in long-standing global flash-points (e.g., India-Pakistan, Turkey-Greece) risks ignition. On the other hand, it is possible to envision computer attacks among major Western economic powers (perhaps in the form of economic espionage) that would clearly not threaten the peace if discovered. Reduced to basics, though, Security Council discretion in Chapter VII matters would be at its apex when determining whether a particular computer network attack amounts to a threat to the peace sufficient to justify a forceful community (or community-authorized) response. 116

See Frowein 1995, at 612. See S.C. Res. 713, D.N. SCOR, 3009th mtg., U.N. Doc. S/RES/713 (1991). This resolution, and all other Security Council Resolutions are available online at http://www.un.org/Docs/sc.htm. 118 See S.C. Res. 733, U.N. SCOR, 3039th mtg., U.N. Doc. S/RES/733 (1992). 119 See S.C. Res. 788, U.N. SCOR, 3138th mtg., U.N. Doc. S/RES/788 (1992). 120 See S.C. Res. 748, U.N. SCOR, 3063rd mtg., U.N. Doc. S/RES/748 (1992). Until the demise of the Cold War, the Council, due to the existence of off-setting bloc vetoes, proved impotent in responding to threats to the peace. In only one case (Rhodesia) did it find a threat to the peace and authorize forceful measures in response. In Security Council Resolution 221, the Council authorized the United Kingdom to deny ships carrying oil destined for Rhodesia access, by force if necessary, to the Port of Beira in Mozambique. See S.C. Res. 221, U.N. SCOR, 1277th mtg., U.N. Doc. S/RES/221 (1966). The impotence of the Security Council led the General Assembly to adopt the Uniting for Peace Resolution in 1950. It provides that: 117

[I]f the Security Council, because of the lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendation to Members for collective measures, including … the use of armed force. G.A. Res. 377(V), para 1, 1950 U.N.Y.B. 193–195.

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Article 51 expresses the second UN Charter authorization of the use of force: Nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.121

The sole authorization of unilateral use of force outside the Charter security system, this provision responds to the reality that the international community may not be able to react quickly enough to armed aggression122 to forestall attack on a victim state. It therefore permits states and their allies to defend themselves until the international ‘‘posse’’ arrives pursuant to Chapter VII. Note that Article 51 restricts a state’s right of self-defense to situations involving armed attack, a narrower category of act than Article 2(4)’s use of force.123 Although coercion not involving armed force may violate Article 2(4) and result in action under Article 39, it does not follow that states may also react unilaterally pursuant to Article 51. This narrowing plainly reflects the Charter’s preference for community responses (e.g., even to threats to peace) over individual ones. In the case of a computer network attack, it is also a prudent approach due to the difficulty states may have in identifying the correct source of an attack. Thus, faced with CNA that does not occur in conjunction with, or as a prelude to, conventional military force, a state may only respond with force in self-defense if the CNA constituted armed force by the standard enunciated supra for armed force, i.e., that it is intended to directly cause physical destruction or injury. 121

U.N. Charter Article 51. For an excellent survey of the article, see Randelzhofer 1995a, b, at

106. 122

The French text of the Charter uses the term ‘‘agression armèe.’’ The limit of self-defense to response to an armed attack is not universally accepted. See Farer 1985. Professor Schachter has responded to such assertions forcefully and convincingly: 123

Some commentators have gone so far as to contend that economic action of such intensity and magnitude would justify forcible self-defense by the target state, and collective defense by its allies. I disagree. Even egregious economic aggression whether or not illegal, does not constitute an armed attack or a use of force in the Charter sense. Allowing forcible reprisal to non-military coercion would broaden the grounds for use of force to an intolerable degree. Schachter 1986. See also Report of the International Law Commission on the Work of its ThirtySecond Session (1980), U.N. Doc. A/35/10, reprinted in [1980] II(2) Y.B.I.L.C. 53, n. 176. It is often said that acts of unarmed aggression also exist (ideological, economic, political, etc.), but even though they are condemned, it cannot be inferred that a state which is a victim of such acts is permitted to resort to the use of armed force in self-defense. Hence, these possibly wrongful acts do not fall within the purview of the present topic, since recourse to armed force, as analysed in the context of self-defence, can be rendered lawful only in the case of armed attack.

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The victim state could repair to the Security Council and allege that other acts of CNA threaten the peace and merit a Chapter VII response, but it could not respond forcefully thereto on its own accord. Additionally, computer network attacks falling short of armed attack might nevertheless violate Article 2(4)’s prohibition on the use of force, thereby subjecting the actor to international opprobrium, but not to a response in self-defense. The foregoing analysis applies only to situations in which the computer network attack occurs in total isolation. What of computer network attacks launched to prepare the battle space? The possibilities abound. CNA disables intelligence gathering assets such as satellites. An opponent ‘‘attacks’’ the Global Positioning Satellite System (GPS) to confound targeting and maneuver. Computerized military medical records are corrupted to complicate provision of medical treatment upon the outbreak of hostilities. A logic bomb is implanted in the reserve activation system, programmed to operate upon call-up. Concerted CNA brings down large sections of the military communications network. In none of these situations does the attack, in and of itself, constitute an armed attack. However, each may very well be an essential step in just such an attack. In certain circumstances, they would merit a forceful response. The prevailing standard maintains that an attack must be ‘‘imminent’’ before the right to self-defense matures. In the nineteenth century, Secretary of State Daniel Webster crafted the classic articulation of this ‘‘anticipatory’’ right with regard to the now famous Caroline incident. He opined that self-defense should ‘‘be confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no moment for deliberation.’’124 Mere preparation failed the test. Following World War II, the Nuremberg Tribunal spoke approvingly of the Caroline standard.125 124

Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), reprinted in 2 John Moore Digest of International Law 411-12 (1906). The Caroline incident involved a Canadian insurrection in 1837. After being defeated, the insurgents retreated into the United States where they recruited and planned further operations. The Caroline, a naval vessel, was being used by the rebels. British troops crossed the border and destroyed the vessel. Britain justified the action on the grounds that the United States was not enforcing its laws along the frontier and that the action was a legitimate exercise of self-defense. Id. at 409–11. 125 See International Military Tribunal (Nuremberg), Judgement and Sentences, 41 Am J Int’l L. 172, 205 (1947). There is significant state practice regarding assertions of anticipatory selfdefense. Professor Bowett has noted a number of the earlier examples: Pakistan justified the entry of her troops into Kashmir in 1948 on this basis before the Security Council, an argument opposed only by India. Israel’s invasion of Sinai in October, 1956, and June, 1967, rested on the same argument. The OAS has used the same argument in relation to the blockade of Cuba during the 1962 missile crisis. Several states have expressed the same argument in the Sixth Committee in connection with the definition of aggression and the UN itself invoked the principle of anticipatory self-defense to justify action by ONUC in Katanga in December, 1961, and December, 1963. Following the invasion of Czechoslovakia by the USSR in 1968, it is permissible to assume that the USSR now shares this view, for there certainly existed no ‘armed attack.’ Bowett 1972a, b.

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Unfortunately, a conundrum surfaces in the application of the imminence criterion. Some commentators assert a high standard for imminence, reading the Caroline principle narrowly.126 Indeed, on its face, it appears to impose a fairly restrictive temporal test. The force used in self-defense must occur just as the attack is about to be launched. A better approach asks what the principle seeks to achieve. Obviously, it hopes to stave off violence so as to allow maximum opportunity for peaceful alternatives to work. However, at the same time, it recognizes that states need not risk destruction through inaction. The principle balances the desire to avoid inter-state violence against the right of a state to exist unharmed. This being so, imminence is best understood as relative. For instance, as defensive options become more limited or less likely to succeed, the acceptability of preemptive action grows. A weak state may be justified in acting sooner than a stronger one, when facing an identical threat, simply because it is at greater risk in having to wait. The greater the relative threat, the more likely preemptive actions are to be effective, and, therefore, the greater the justification for acting before the enemy can complete preparations and mount its aggressive attack. Conceptually, each victim state has a different window of opportunity within which it must act to counter the impending attack. In some cases, the window is wide, extending even to the point of attack itself. In others, it may be much narrower. Unless international law requires the potential victim to simply suffer the attack before responding,127 the proper standard for evaluating an anticipatory operation must be whether or not it occurred during the last possible window of opportunity. Hence, the appropriate question relates more to the correct timing of the preemptive strike than to the imminence of the attack that animates it. It is not sufficient to look entirely to the victim state. The likelihood of the pending attack should also determine the appropriateness of forceful response in self-defense. Focusing on this point, Professor Yoram Dinstein has (despite rejecting the ‘‘anticipatory’’ terminology) suggested the admissibility of ‘‘interceptive’’ defense under Article 51. Interceptive … self-defence takes place after the other side has committed itself to an armed attack in an ostensibly irrevocable way. Whereas a preventive strike anticipates an armed attack which is merely ‘foreseeable’ (or even just ‘conceivable’), an interceptive, strike counters an armed attack which is ‘imminent’ and practically ‘unavoidable.’128

Anticipatory self-defense most effectively realizes the presumption against violence, the preference for community responses, and the right of a State to

126

See, e.g., Schachter 1984. Professor Dinstein perceptively notes that Article 2 of the Definition of Aggression Resolution refers to the first use of force as prima facie evidence of aggression. In other words, the burden is upon the actor to demonstrate that its use of force was not aggression. But this necessarily means that there are first uses of force that do not amount to aggression and are, therefore, not wrongful. See Dinstein 1994, at 187. 128 Id. at 190. 127

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survival by combining the two elements. Defense in advance of the attack is legitimate if the potential victim must immediately act to defend itself in a meaningful way and if the potential aggressor has irrevocably committed itself to attack. Without the first requirement, anticipatory self-defense risks missing opportunities to resolve the situation peacefully; without the second, a danger exists of responding to an attack that is speculative at best. A wide array of computer network attack operations executed to prepare the battle space may meet this standard. By the anticipatory self-defense standard, the right of a state to respond forcefully to them would depend not so much on the nature of the information operation, as on its significance vis-à-vis the coming armed attack. Does the CNA appear merely preparatory or is it more likely an irreversible step in the final chain of events? Placement of a logic bomb in an air defense sector’s warning network does not demand an immediate retort. Attempting to corrupt the system as troops are massed along the border and the enemy’s air force has just completed a 48-hour stand-down represents a much more serious threat and may well merit an immediate defensive response. How capable is the state of defending itself in the event the attack does come? The logic bomb is only a potential interference with future operations, whereas corruption of the air defense system may require a prompt response lest the opponent be able to destroy the victim State’s air force on the ground without warning. Is the CNA the sort of act that logically fits into a near-term attack sequence? Attacking supply and transportation computer networks fits because it would hinder reinforcement and resupply efforts. So too do attacks on communication systems, as C3 attacks are highly likely immediately preceding any attack.129 By contrast, attacking defense research facility networks does not fit into a near-term attack sequence because the benefits of most such operations are likely to be reaped long after the computer attack occurs. Essentially, the right to respond forcefully in self-defense to a computer network attack that does not in and of itself constitute an armed attack arises upon the confluence of three factors: (1) The CNA is part of an overall operation culminating in armed attack; (2) The CNA is an irrevocable step in an imminent (near-term) and probably unavoidable attack; and

129

‘‘C3’’ refers to command, control, and communications systems. Similar terms of art include ‘‘C2,’’ command and control, and ‘‘C3ISR,’’ command, control, communications, intelligence, surveillance, and reconnaissance. ‘‘C2W,’’ command and control warfare, would include attacks on systems encompassed by each of these terms. See supra note 11 and accompanying text.

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(3) The defender is reacting in advance of the attack itself during the last possible window of opportunity available to effectively counter the attack.130 Note that it is not the CNA that is actually being defended against, but instead the overall armed attack, complete with its information operation component. Thus, compliance with the requirement that acts in self-defense be proportional is measured against the armed attack, not the CNA.131 For the same reason, the attack need not be against the facility that launched the CNA or even designed to counter this or other computer network attacks. Again, the armed attack is the normative driver, not the information operation. The final issue surrounding self-defense is whether Article 51 subsumes the ‘‘inherent right’’ to self-defense, in other words whether a separate and distinct right exists in customary international law. Clearly, a customary law right to self-defense exists, a fact recognized by the ICJ in the Nicaragua case. But is that right only meaningful to states which are not party to the UN Charter (or those which would exercise collective defense to come to their assistance) or does the right exist altogether separately? Is it limited to armed attack, and does it evolve in different directions and at a different pace? This debate has permeated scholarship and practice regarding the law of self-defense for the last five decades.132 However, in the context of the Charter security scheme, the right clearly appears limited to defense against armed attacks. If a less restrictive customary international law norm would permit responses to situations other than armed attacks, parties to the Charter would still be bound by their treaty obligation. Of course, an operational code regarding defensive responses to CNA which varies from the armed attack standard could develop that is less-restrictive than Article 51. That would not alter the content of the standard, but simply relegate it to the positivist myth system.

130

Michael Walzer has suggested a similar line of reasoning: The line between legitimate and illegitimate first strikes is not going to be drawn at the point of imminent attack but at the point of sufficient threat. That phrase is necessarily vague. I mean it to cover three things: a manifest intent to injure, a degree of active preparation that makes that intent a positive danger, and a general situation in which waiting, or doing anything other than fighting, greatly magnifies the risk.

Walzer 1992. 131 Self-defense must be both necessary and proportional. ‘‘There is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.’’ 1968 I.C.J. 4, 94 cited with approval in Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 4, 226, at para 41, 31 I.L.M. 809, 822 (1996). See also Restatement (Third) of The Foreign Relations Law of the United States ß 905 (1987). Professor Brownlie labels proportionality ‘‘the essence of selfdefence.’’ Brownlie 1963, at 279 n. 2. 132 In 1980, the International Law Commission catalogued some of the more important and influential positions on the subject. Among those advocating limiting the right to situations involving armed attack were: Kinz 1947; Kelsen 1948; Jessup 1948; Wright 1959. Taking the contrary approach were Brierly 1963; Green 1957; McDougal and Feliciano 1961. The ILC took no position on the issue.

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1.4 Concluding Thoughts on the Appropriate Normative Framework Computer network attack represents a new tool of coercion in the international arena, one that is fundamentally different from those previously available. Arguably, its distinctiveness merits consideration of a new and unique normative framework to specifically address computer network attack or, more broadly, information operations. However, consensus on the need for such an effort, let alone its substantive content, is unlikely to be achieved at any time in the near future. Cognizant of this reality, and of the fact that efforts to develop and field computer network attack capability are being pursued vigorously, the essay considers this new coercive technique within the current prescriptive environment. It suggests an analysis of computer network attack under international law, particularly as framed with the U.N. Charter, that would proceed as follows. (1) Is the technique employed in the CNA a use of armed force? It is if the attack is intended to directly cause physical damage to tangible objects or injury to human beings. (2) If it is not armed force, is the CNA nevertheless a use of force as contemplated in the U.N. Charter? It is if the nature of its consequences track those consequence commonalities which characterize armed force. (3) If the CNA is a use of force (armed or otherwise), is that force applied consistent with Chapter VII, the principle of self-defense, or operational code norms permitting its use in the attendant circumstances? (a) If so, the operation is likely to be judged legitimate. (b) If not and the operation constitutes a use of armed force, the CNA will violate Article 2(4), as well as the customary international law prohibition on the use of force. (c) If not and the operation constitutes a use of force, but not armed force, the CNA will violate Article 2(4). (4) If the CNA does not rise to the level of the use of force, is there another prohibition in international law that would preclude its use? The most likely candidate, albeit not the only one, would be the prohibition on intervening in the affairs of other States. Assuming a CNA occurs, the appropriateness of a response by armed force may be analyzed in the following manner: (1) If the computer network attack amounts to a use of armed force, then the Security Council may characterize it as an act of aggression or breach of peace and authorize a forceful response under Article 42 of the Charter. To constitute an armed attack, the CNA must be intended to directly cause physical damage to tangible objects or injury to human beings.

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(2) If the CNA does not constitute an armed attack, the Security Council may nevertheless find it to threaten the peace (the absence of inter-state violence) and authorize a use offorce to prevent a subsequent breach of peace. The CNA need not amount to a use of force before the Council may determine that it threatens peace. (3) States, acting individually or collectively, may respond to a CNA amounting to armed attack with the use of force pursuant to Article 51 and the inherent right of self-defense. (4) States, acting individually or collectively, may respond to a CNA not amounting to armed attack, but which is an integral part of an operation intended to culminate in armed attack when: (a) The acts in self-defense occur during the last possible window of opportunity available to effectively counter the attack; and (b) The CNA is an irrevocable step in an imminent (near-term) and probably unavoidable attack. The indeterminacies in this scheme are the evolution of customary law and the emergence of operational code norms. It is entirely possible that customary law norms restricting the use of CNA beyond Charter levels could emerge. However, any such process would be incremental. Much more likely is emergence of new operational codes, either enhancing or relaxing existing norms, in response to the exploding possibilities of information operations. To the extent that such codes reflect the expectations of the politically effective actors on the international scene, policy vectors assume normative valence. The United States, unfortunately, faces a dilemma with regard to an appropriate policy stance vis-à-vis computer network attack. Its technological wherewithal renders it the state most capable of conducting information operations, but also the one most vulnerable, particularly to CNA. The temptation to exploit one’s strengths drives much of the serious attention paid by U.S. government agencies, both military and civilian, to offensive information operations. However, as time goes on our relative advantage will inevitably slip as IO know-how diffuses to increasing numbers of states. Moreover, it will prove an attractive asymmetric option to states unable to field forces to the level of the United States and its closest allies. Given this likely unfolding of events, perhaps the policy approach that best fosters U.S. interests is one advocating a restrictive view of the permissibility of computer network attack. Since the Charter use of force prohibition reflects a fair degree of imprecision in the CNA context, this approach would favor greater inclusivity in gray area applications of the norm. This predilection to restrictions on CNA operations should not be interpreted as a suggestion that the criteria for armed attack be relaxed. On the contrary, maintaining a relatively high threshold for triggering the right to respond to CNA in self-defense, although not enhancing its deterrent effect, serves to maintain constraints on the usually more disruptive act of unilateral resort to armed force. Furthermore, should an information operation be mounted that raises the question of whether an act of armed force has occurred, it would in all likelihood amount to a threat to the peace and thereby seize the Security Council of the matter. This may be faint consolation for the state

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facing a serious computer network attack, but from a world order perspective it represents the optimal alternative. As Myres McDougal and Federico Feliciano eloquently noted nearly four decades ago, The overwhelming common interest in basic order, and the exorbitant potential costs of exercise of force by contemporary weapons would appear to counterbalance losses states may occasionally incur from lesser wrongs left inadequately redressed because of deficiencies in available remedial procedures or the limited ability of a poorly organized community to create effective remedies for all wrongs.133

Ultimately, of course, it is achievement of world order that best fosters the shared community values underlying the jus ad bellum.

Abbreviations ATC

Air traffic control

CNA

Computer network attacks

DII

Defense information infrastructure

DISA

Defense Information Systems Agency

DOD

United States Department of Defense

ICJ

International Court of Justice

IO

Information operations

IW

Information warfare

WMD

Weapons of mass destruction

References Alberts DS, Papp DS (eds) (1997) The information age: an anthology on its impact and consequences. Washington, DC: National Defense University Bowett DW (1972a) Economic coercion and reprisals by states, 13 VA. J. Int’L L. l Bowett DW (1972b) Reprisals involving resort to armed force, 66 AM. J Int’L L 1, 4 n. 8 Brierly J (1963) The law of nations 416 Brownlie I (1963) International law and the use of force by states. Oxford University Press, New York Brownlie I (1990) Principles of public international law, 4th edn. Clarendon Press, Oxford, pp 631–632 Cameron CE (1991) Developing a standard for politically related state economic action, 13 Mich J Int’l L 218 133

McDougal and Feliciano 1961, at 207–208.

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Campen A (ed) (1996) Cyberwar: security, strategy, and conflict in the information age Campen A, Dearth D (eds) (1998) Cyberwar 2.0: myths, mysteries and reality Cohen WS (1998) Secretary of DEF., Ann. Rep. to the president and congress D’Amato A (1987) Trashing customary international law, 81 Am J Int’l L 101 D’Amato A (1998) Megatrends in the use of force. In: Schmitt M, Green L (eds) The law of armed conflict: into the next millennium 389 Defense Science Board Task Force (1996) Information warfare: defense (lW-D) 2–15 DiCenso DJ (1998) Information operations: an act of war? (Oct 7, 1998) (unpublished report for the Institute of National Security Studies, U.S. Air Force Academy) Dinstein Y (1994) War, aggression and self-defense 86 (2nd edn) Drew DM (1987) Technology and the American way of war: worshipping a false idol? Air Force J Logist Duncan JC (1998) A primer on the employment of non-lethal weapons. Naval L Rev 1:45 Dunlap C (1998) The law of Cyberwar: a case study from the future. In: Campen A, Dearth D (eds) Cyberwar 2.0: Myths, mysteries and reality. AFCEA International Press, Fairfax Farer TJ (1985) Political and economic coercion in contemporary international law. Am J Int’l L 79:405 FitzGerald MC (1997) Russian views on electronic and information warfare. In: Proceedings of the third international command and control research and technology symposium: partners for the 21st Century, National Defense University, p 126 Fitzsimonds JR (1995) The coming military revolution: opportunities and risks. Parameters Frowein J (1995) Article 39. In: Simma B et al (eds) The charter of the United Nations: a commentary 106 Gouré D (Autumn 1993) Is there a military-technical revolution in America’s future? Wash Q Green LC (1957) Armed conflict, war and self-defence. Archiv Des Volkerrechts 6:387 Greenberg L et al (1998) Information warfare and international law. National Defense Univesity, Washington Gumahad II AT (Spring 1997) The profession of arms in the information age. Jt Force Q Jackson P et al (eds) (1997–1998) Jane’s all the world’s aircraft 676 Jessup Ph (1948) A modern law of nations 165 Kanuck SP (1996) Information warfare: new challenges for public international law. Harv Int’l L J 37:272 Kelsen H (1948) Collective security and collective self-defense under the charter of the United Nations, 42. Am J Int’L L 92:783–791 Kelsen H (1956) Collective security under international law 57 n. 5 (49 Naval War College International Law Studies 1954) Kinz JL (1947) Individual and collective self-defense in article 51 of the charter of the United Nations. Am J Int’l L 41:872 Kirgis FL (1987) Custom on a sliding scale. Am J Int’l L 81:146–147 Krepinevich Jr AF (Summer 1994) Keeping pace with the military-technical revolution, issues in science & technology Krepinevich Jr AF (1995) Cavalry to computer: the pattern of military revolutions. In: Naval War College Faculty (ed) Strategy and force planning 582 Libicki MC (1995a) The mesh and the net: speculations on armed conflict in a time of free silicon. National Defense University, Washington Libicki MC (1995b) What is information warfare?. National Defense University, Washington Lohr S (1996) Ready. Aim. Zap; National security experts plan for wars whose targets and weapons are all digital. Sept. 30, N.Y. Times Lung H, Feng C (1996) Chinese military studies information warfare (Hong Kong PTS Msg 210225Z Feb. 96, Subj: PLA Undertakes Study of Information Warfare) (Publications Translations Section, U.S. Consulate General, Hong Kong trans.) Malanczuk P (1997) Akehurst’s modern introduction to international law 311 (7th Rev edn) McDougal M, Feliciano F (1961) Law and minimum world public order 263

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McKenzie Jr KF (Summer 1995) Beyond Luddites and magicians: examining the MTR. Parameters Molander RC et al (1996) Strategic information warfare: a new face of war 66 Mrazek J (1989) Prohibition of the use and threat of force: self-defence and self-help in international law. Can YB Int’l L 27:81–90 Office of Science and Technology Policy, Executive Office of the President (April 1997) Cybernation: the American infrastructure in the information age Office of the Judge Advocate General, Headquarters United States Air Force (1997) A primer on legal issues in information warfare (3rd ed.) Palwankar U (May–June 1993) Applicability of international humanitarian law to United nations peace-keeping forces. Int’l Rev Red Cross Paust JJ, Blaustein AP (1974) The arab oil weapon: a threat to international peace. Am J Int’l L 68:410 President’s Commission on Critical Infrastructure Protection (Oct. 1997) Critical foundations: protecting America’s infrastructures A-48 Randelzhofer A (1995a) Article 2(4), In: Simma B et al (eds) The charter of the United Nations: a commentary 106, 117–118 Randelzhofer A (1995b) Article 51. In: Simma B et al (eds) The charter of the United Nations: a commentary 106 Rauschning D et al (eds) (1997) Key resolutions of the United Nations general assembly, 1946–1996 Reisman WM (1984–1985) Article 2(4): The Use of Force in Contemporary International Law, 78–79 Am Soc Int’l L Proc 74, 79–84 Reisman WM (1985) Criteria for the lawful use of force in international law. Yale J Int’l L 10:279–281 Reisman WM (1989) War powers: the operational code of competence. Am J Int’l L 83:777 Reisman WM (1991) Allocating competences to use coercion in the post-cold war world: practices, conditions, and prospects. In: Damrosch LF, Scheffer DJ (eds) Law and force in the new international order 26, 45 Sadurska R (1988) Threats of force, 82 Am J Int’l L 239 Schachter O (1984) The right of states to use armed force. Mich L Rev 82(35):1620–1634 Schachter O (1986) In defense of international rules on the use of force. U.Chi L Rev 53:113–127 Schmitt M (1998) Bellum Americanum: The U.S. view of twenty-first century war and its possible implications for the law of armed conflict. In: Schmitt M, Green L (eds) The law of armed conflict: into the next millennium 389 Schmitt MN (1999) War and the environment: fault lines in the prescriptive landscape. Archiv Des Volkerrechts. 37:25–67 Schwartau W (1994) Information warfare: chaos on the electronic superhighway. Thunder’s Mouth Press, New York Shelat A (Summer 1994) An empty revolution: MTR expectations fall short. Harv Int Rev Scott RD (1998) Legal aspects of information warfare: military disruption of telecommunications. Naval L Rev 45(57):64–75 Shaw MN (1997) International Law 659 (4th edn) Shulman MR (1999) Discrimination in the laws of information warfare. Colum J Trans L 37:939 Steele RD (August 1993) War and peace in the age of information, superintendent’s guest lecture, Naval Postgraduate School Strassmann PA (Jan 5, 1998) Information terrorism: the ultimate Infosec challenge, Briefing at National Defense University Swett C (July 17, 1995) Strategic assessment: the internet. http://www.fas.org/cp/swett.html Szasz P (1998) The law of economic sanctions. In: Schmitt M, Green L (eds) The law of armed conflict, the law of armed conflict: into the next millennium 389 Uchida T (1997) School of advanced military studies, U.S. army command and general staff college, building a basis for Information warfare rules of engagement 8

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Verri P (1992) In: Markee E, Mutti S (trans) Dictionary of the international law of armed conflict 90. ICRC, Geneva Walsh M (1997) U.S. Military expands information warfare defense, Def. News, Apr. 28–May 4 Walzer M (1992) Just and unjust wars 81 (2nd edn) Wehberg H (1951) L’Interdiction du Recours á la Force: Le Principe et les Problèmes qui se Posent. 78 R.C.A.D.I. 1, 69 Wright Q (1959) The United States intervention in Lebanon. Am J Int’l L 53:112

Chapter 2

Responding to Transnational Terrorism Under the Jus ad Bellum: A Normative Framework

Abstract This chapter explores the jus ad bellum—that aspect of international law governing the resort to force by States—applicable to counterterrorist operations. It begins by considering the possibility of a mandate to conduct such operations under Chapter VII of the UN Charter, concluding that such an authorization from the Security Council would be lawful. The chapter then examines self-defense pursuant to Article 51 of the Charter (and customary international law) as a possible basis for cross-border counterterrorist operations. It argues that despite suggestions to the contrary by the International Court of Justice, selfdefense is a legitimate ground for actions against non-State actors such as terrorist groups, even when such groups are located in another State’s territory. However, strict conditions apply as to when and how they may be conducted.

Contents 2.1 Introduction....................................................................................................................... 2.2 The jus ad bellum Schema............................................................................................... 2.2.1 Security Council Mandate .................................................................................... 2.2.2 Self-Defense.......................................................................................................... 2.3 The Case of Pre-Emptive Self-Defense........................................................................... 2.4 Conclusion ........................................................................................................................ References..................................................................................................................................

50 51 51 55 80 84 85

First published in Michael N. Schmitt & Jelena Pejic, eds., International Law and Armed Conflict: Exploring the Faultlines (Leiden, Martinus Nijhoff, 2007); reprinted in 56 Naval Law Review (2008) 1.

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_2,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

49

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2 Responding to Transnational Terrorism Under the Jus ad Bellum

2.1 Introduction On April 5, 1986, terrorists bombed Berlin’s La Belle discotheque, a bar frequented by US military personnel. One American soldier and one Turkish woman were killed and nearly 200 other patrons injured. Prior to the attack, US intelligence intercepted communications to the Libyan People’s Bureau in the city ordering an attack on Americans. Other intercepts, collected both before and after the bombing, further substantiated Libyan involvement. Ten days later, the United States responded with Operation El Dorado Canyon, a strike involving some 200 aircraft targeting terrorist and Libyan government facilities in Tripoli and Benghazi, including a residence of Libyan leader Muammar el-Qadaffi. The international reaction was overwhelmingly critical. The United Nations General Assembly ‘‘condemned’’ the attack as ‘‘a violation of the Charter of the United Nations and of international law,1 while Secretary General Javier Perez de Cuellar publicly ‘‘deplored’’ the ‘‘military action by one member state against another.’’2 The reaction of individual States, with the notable exceptions of the United Kingdom (from which some of the aircraft launched) and Israel, was likewise unsupportive.3 Indeed, aircraft based in the United Kingdom had to transit the Strait of Gibraltar because the United States could not secure overflight rights from countries, including NATO ally France, along the most direct route to the target area.4 Fifteen years later, on 11 September 2001, members of al Qaeda, a shadowy terrorist network operating from some 60 countries, seized control of four aircraft, flying two into the World Trade Center in New York City, and a third into the Pentagon. The fourth crashed in Pennsylvania following a valiant attempt by passengers to regain control of the aircraft. In all, nearly 3,000 people died, the citizens of over 100 nations. The financial impact of the attack has been estimated in the hundreds of billions of dollars.5 The United States and its coalition partners responded on October 7 by attacking both al Qaeda and Taliban targets in Afghanistan. Not only did the

1

G.A. Res. 41/38, } l, U.N. Doc. A/RES/41/38 (November 20, 1986). Sciolino 1986, at Al7. 3 For instance, Shimon Peres, the Israeli Prime Minister, stated ‘‘the American action benefited the whole free world, which was becoming more and more a victim of irresponsible terrorism. It is good that a major power like the United States took steps to cut off the arm of the terrorists, at least one of them.’’ Broder 1986, at A9. On the reaction to the strike, see Reisman 1999, for a description of the international reaction. See also Baker 1994. 4 Military aircraft are permitted transit passage through international straits, i.e., a strait in territorial waters used for international navigation (including overlapping territorial waters of multiple States) linking two parts of the high seas (or exclusive economic zones). See The Commander’s Handbook on the Law of Naval Operations (NWP 1–14 M; MCWP 5–12.1; COMDTPUB P5800.7 A) (2007), at para 2.5.3. 5 The Comptroller of New York City estimated the cost to the city alone at $95 billion. Wray 2002. Financial losses and the cost to the US government dwarf that figure. 2

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international community refrain from condemning Operation Enduring Freedom (OEF), but many States provided verbal and material support. The United Nations and other intergovernmental organizations treated the 9/11 terrorist strikes as meriting military action in self-defense, even as the United States ousted the Taliban regime, which no credible source cited as behind the attacks.6 There is little question but that the international normative understandings regarding the application of the jus ad bellum, that component of international law which governs when States may resort to force, had changed dramatically. Large-scale transnational terrorism compelled the international community to discover a normative architecture governing the legal bases for counterterrorism that had theretofore been rather obscure. Specifically, although traditionally viewed as a matter for law enforcement, States and intergovernmental organizations now style terrorism as justifying, with certain conditions, the use of military force pursuant to the jus ad bellum. It is not so much that the law has changed as it is that existing law is being applied in a nascent context. In law, as in all other aspects of international security, what one sees depends on where one stands.

2.2 The Jus ad Bellum Schema Set out in the United Nations Charter, the jus ad bellum schema is linear. Pursuant to Article 2(4), States Party to the Charter agree to ‘‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’’7 There are two universally accepted exceptions to the prohibition.

2.2.1 Security Council Mandate The first occurs when the Security Council determines pursuant to Article 39 that a breach of the peace, act of aggression, or threat to the peace exists.8 Having made such a determination, and having attempted to resolve the situation through nonforceful measures as required by Article 41 (or determining that they would prove

6

For a discussion of these events and their legal implications, see Schmitt 2002. UN Charter, Article 2, para 4. 8 UN Charter, Article 39. ‘‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’’ 7

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fruitless),9 the Council may authorize the use of force to maintain or restore international peace and security pursuant to Article 42.10 Such actions are known variously as Chapter VII, peace enforcement, or collective security operations. In the eyes of the Security Council, international terrorism qualifies as a threat to international peace and security. It made exactly that finding the very day after the attacks of September 11. In Resolution 1368, the Council ‘‘[u]nequivocally condemn[ed] in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security.’’11 Note the scope of the Council’s characterization of any act of international terrorism as a threat to international peace and security. It did so again on 28 September in Resolution 1373, which encouraged international cooperation in the fight against terrorism, specifically through implementation of international conventions.12 On 12 November, the Council adopted Resolution 1377, to which a Ministeriallevel declaration on terrorism was attached. The declaration branded international terrorism ‘‘one of the most serious threats to international peace and security in the twenty-first century,’’ declared it ‘‘a challenge to all States and to all of humanity,’’ reaffirmed the Council’s ‘‘unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed,’’ and called on ‘‘all States to intensify their efforts to eliminate the scourge

9

UN Charter, Article 41. ‘‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’’ 10 UN Charter, Article 42. ‘‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’’ 11 S.C. Res. 1368, } 1, UN Doc. S/RES/1368 (September 12, 2001). 12 S.C. Res. 1373, UN Doc. S/RES 1373 (September 28, 2001). The resolution ‘‘reaffirmed’’ Resolution 1373, as well as S.C. Resolution 1269 (October 19, 1999), which had ‘‘[u]nequivocally condemn[ed] all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed, in particular those which could threaten international peace and security.’’ See also S.C. Res. 1455, UN Doc. S/RES/1455 (January 17, 2003); S.C. Res. 1566, UN Doc. S/RES/1566 (October 8, 2004); S.C. Res. 1526, UN Doc. S/RES/1526 (January 30, 2004); S.C. Res. 1535, UN Doc. S/RES/1535 (March 26, 2004); and S.C. Res. 1617, UN Doc. S/RES/1617 (July 29, 2005).

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of international terrorism.’’13 Since then, the Security Council has characterized terrorist attacks as threats to international peace and security with great regularity: Bali (2002),14 Moscow (2002),15 Kenya (2002),16 Bogota (2003),17 Istanbul (2003),18 Madrid (2004),19 London (2005),20 and Iraq (2005).21 It is, therefore, irrefutable that international terrorism constitutes a qualifying condition precedent to Article 42 action. On repeated occasions, the Council, exercising its Chapter VII powers, has encouraged, and sometimes required, States to cooperate in combating international terrorism. Most notably, in Resolution 1373, it obliged them to, inter alia, prevent the financing of terrorism; criminalize the collection of funds for terrorist purposes; freeze the financial assets of anyone who participates in, or facilitates, terrorism; and take any steps necessary to prevent terrorist acts, including passing early-warning information to other States. Drawing on the recent Taliban experience, the Resolution additionally instructed States to ‘‘[r]efrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists’’; ‘‘[d]eny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; [p]revent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens’’; and ‘‘[e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.’’22 Although the Security Council has never expressly mandated the use of force in response to terrorism, it has taken measures short of that remedy. For instance, the Council directed non-forceful sanctions against both Libya and Sudan during the 1990s for their support of terrorism.23 And in 1999, it imposed sanctions on the

13

S.C. Res. 1377, Annex, UN Doc. S/RES/1377 (November 12, 2001). In 2003, the Council, meeting at the Foreign Minister Level, adopted a similar declaration. S.C. Res. 1456, UN Doc. S/RES/1456 (January 20, 2003). At the 2005 Security Council Summit, Resolution 1624, UN Doc. S/RES/1624 (September 14, 2005) was adopted, again calling on Member States to intensify their domestic and international efforts to combat terrorism. 14 S.C. Res. 1438, UN Doc. S/RES/1438 (October 14, 2002). 15 S.C. Res. 1440, UN Doc. S/RES/I440 (October 24, 2002). 16 S.C. Res. 1450, UN Doc. S/RES/1450 (December 13, 2002). 17 S.C. Res. 1465, UN Doc. S/RES/1465 (February 13, 2003). 18 S.C. Res. 1516, UN Doc. S/RES/1516 (November 20, 2003). 19 S.C. Res. 1530, UN Doc. S/RES/1530 (March 11, 2004). 20 S.C. Res. 1611, UN Doc. S/RES/161 1 (July 7, 2005). 21 S.C. Res. 1618, UN Doc. S/RES/1618 (August 4, 2005). 22 S.C. Res. 1373, } 2(e), UN Doc. S/RES/l373 (September 28, 2001). 23 S.C. Res. 748, UN Doc. S/RES/748 (March 31, 1992) (Libya); S.C. Res. 1054, UN Doc. S/RES/l054 (April 29, 1996) (Sudan).

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Taliban because, among other reasons, the regime was providing safe haven to Usama bin Laden and allowing him and his associates ‘‘to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations.’’24 The sanctions included a ban on flights to and from Afghanistan and an international freeze on Taliban assets. Further sanctions were imposed in 2000 and a sanctions-monitoring mechanism was established in 2001.25 Few would contest the power of the Security Council to take the further step of authorizing force to counter terrorism, should it so deem necessary. It is important to understand that the Council enjoys unconditional authority to determine both when a situation constitutes a threat, breach, or act of aggression and whether to mandate the use of force in response. Once the Council grants a mandate, it is irreversible except by decision of the Council itself or upon occurrence of a termination condition, such as a cessation date, set forth in the Resolution in question.26 No review mechanism exists to effectively challenge the Council’s decision. This being so, it would be entirely within the Security Council’s prerogative to determine that any terrorist-related action amounted to a threat to international peace and security necessitating a forceful response. As an example, from 1998 to 2001, the Council frequently censured the Taliban regime over terrorism-related issues.27 At any time during that period, the Council could have authorized the use of force against the Taliban, either to coerce the regime into compliance with its wishes or to remove it from power. It elected to not take such a dramatic step, even after the attacks of September 11. The key point is that the Council enjoyed the discretion to do so and, in the future, it may opt to exercise said power in the face of transnational terrorism posing catastrophic risks to the global community.

24

S.C. Res. 1267, pmbl, UN Doc. S/RES/l267 (October 15, 1999). S.C. Res. 1333, UN Doc. S/RES/1333 (Dec. 19, 2000); S.C. Res. 1363, UN Doc. S/RES/l333 (July 30, 2001). 26 An example of expiration involved the UN Preventive Deployment Force (UNPREDEP) in the Former Yugoslav Republic of Macedonia. Its mandate, initially set out in S.C. Res. 983, UN Doc. S/RES/983 (March 31, 1995), expired on February 28, 1999. China vetoed the resolution seeking extension, a move widely regarded as retaliation for Macedonia’s establishment of diplomatic relations with Taiwan. A resolution may also fall into desuetude when circumstances have so changed that the underlying logic and purpose of the resolution no longer resonate. However, absent that condition or a new resolution repudiating the original resolution ‘‘a presumption of continuity is plausible.’’ See Roberts 2003, at 31, 43. 27 S.C. Res. 1193, UN Doc. S/RES/1193 (August 28, 1998); S.C. Res. 1214, UN Doc. S/RES/ 1214 (December 8, 1998); S.C. Res. 1267, UN Doc. S/RES/1267 (October 15, 1999); S.C. Res. 1333, UN Doc. S/RES/1333 (December 19, 2000); S.C. Res. 1363, UN. Doc. S/RES/1363 (July 30, 2001). 25

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2.2.2 Self-Defense When the United States, United Kingdom, and other States attacked Afghanistan in 2001, they averred self-defense as the operation’s legal basis. Self-defense constitutes the second express exception to the Charter prohibition on the use of force. A form of self-help in international law, it is a customary international law norm codified in Article 51 of the United Nations Charter. Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Note that self-defense may be exercised individually or collectively. Since not every State participating in OEF had been attacked on September 11, the Coalition operations launched on October 7 amounted to both collective defence and individual self-defence. Operation Enduring Freedom was not the first instance of the United States claiming self-defense as a right in forcefully countering terrorism, although in previous decades it typically addressed transnational terrorism through the prism of law enforcement.28 The international reaction to such assertions of self-defense has evolved steadily, an evolution that reflects a clear shift in the normative expectations regarding exercise of the right. Recall Operation El Dorado Canyon in 1986, mentioned at the outset of this chapter. Following the attack, President Reagan announced that the United States had acted defensively: ‘‘Self-defense is not only our right, it is our duty. It is the purpose behind the mission undertaken tonight—a mission fully consistent with Article 51 of the UN Charter.’’29 As noted, the international community generally balked at this justification. The United States again claimed the right to react to terrorism in self-defense when it uncovered an assassination plot against former President George Bush in 1993.

28

In 1989, President George H.W. Bush elected not to respond militarily when terrorists blew up Pan American flight 103 over Lockerbie, Scotland. Two hundred and seventy people died in the attack. Instead, the United States mobilized international pressure that led to prosecution by a Scottish court sitting in the Netherlands. Extradition and criminal prosecution of those involved in the World Trade Center bombing, particularly Sheik Omar Abdel Rahman, was the chosen course of action. 29 Reagan President 1986, at 1–2. See also, White House Statement 1986, at 1. A suggestion that the motive was retaliation created some confusion: ‘‘Several weeks ago in New Orleans, I warned Colonel Qadhafi we would hold his regime accountable for any new terrorist attacks launched against American citizens. More recently, I made it clear we would respond as soon as we determined conclusively who was responsible …’’

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In reporting to the Security Council that US forces had replied by launching cruise missiles against Iraqi intelligence facilities, Madeline Albright, US. Ambassador to the United Nations, stated ‘‘I am not asking the Council for any action … but in our judgment every member here today would regard an assassination attempt against its former head of state as an attack against itself and would react.’’30 International reaction was certainly more muted than it had been in response to El Dorado Canyon, a fact no doubt influenced by Iraq’s status as an international pariah in the aftermath of events that had precipitated the First Gulf War, as well as that nation’s non-compliance with the terms of the cease-fire. In 1998, the United States again claimed a right to use defensive force following the bombings of US embassies in Nairobi and Dar-es-Salaam. Albright, now Secretary of State, announced that ‘‘[I]f we had not taken this action, we would not have been exercising our right of self-defense …’’31 A number of States, including Iran, Iraq, Libya, Pakistan, and Russia, condemned the response, which consisted of cruise missile strikes against terrorist camps in Afghanistan and a pharmaceutical plant in Sudan allegedly tied to terrorism.32 However, a stream of criticism distinguishing between the two targets foreshadowed a shift in international normative expectations regarding forceful State responses to transnational terrorism. The League of Arab States, for example, criticised the strike into Sudan while offering no comment on that against targets in Afghanistan.33 At the United Nations, Sudan, the Group of African States, the Arab League, and the Group of Islamic States asked the Security Council to investigate the Sudan attack, but remained silent over the companion operations against Afghanistan-based targets.34 Perhaps most tellingly, in nearly every case, censure focused not on the fact that a forceful response to a terrorist attack had been mounted, but rather on a belief that the Sudan attack was based on faulty intelligence. In other words, there was implied acceptance of a State’s right to react forcefully to terrorism pursuant to the law of self-defense, so long as the action is based on reliable information.

30

Meisler 1993, at A1. Lacey 2000, citing Interview by Dan Rather, CBS News, with Madeleine K. Albright, US Secretary of State, (August 21, 1998). 32 Murphy 1999. 33 Letter from the Chargé d’Affaires A.I. of the Permanent Mission of Kuwait to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/789 (August 21, 1998). 34 Letter from the Permanent Representative of the Sudan to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/786 (August 21, 1998); Letter from the Permanent Representative of Namibia to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/802 (August 25, 1998) (conveying Group of African States request); Letter from the Chargé d’Affaires of the Permanent Mission of Kuwait to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/791 (August 21, 1998) (conveying League of Arab States request); Letter from the Chargé d’Affaires A.I. of the Permanent Mission of Qatar to the United Nations Addressed to the President of the Security Council, UN Doc. S/1998/790 (August 21, 1998) (conveying Group of Islamic States request). 31

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The acceptability of resorting to military force in response to transnational terrorism crystallized in the aftermath of 9/11. Prior to that event, many in the international legal community would still have urged that the international law of self-defense referred only to ‘‘armed attacks’’ by States or armed groups acting on behalf of a State. Violent acts by non-State actors remained the province of law enforcement.However, within a day of the attacks, and at a time when no one was suggesting a State was behind them, the Security Council adopted Resolution 1368, in which it recognized the inherent right of individual or collective selfdefense.35 This action suggested that the Council now understood the law of selfdefense as extending to terrorism, at least of the kind mounted on September 11. Lest the resolution be styled merely an emotive reaction to the events of the previous day, on September 28 the Council again affirmed the right of self-defense in Resolution 1373.36 Other international organizations took exactly the same approach. For instance, both NATO and the Organization of American States activated the collective defense provisions of their respective treaties.37 So too did Australia vis-à-vis the ANZUS Pact.38 Bilateral support for the prospective US exercise of its self-defense rights was equally widespread, as 27 nations granted overflight and landing rights to US military aircraft and 46 issued declarations of support. Quite simply, it was universally accepted that a military response in selfdefense would be appropriate and lawful. On October 7, US and Coalition forces launched that response. US Ambassador to the United Nations John Negroponte contemporaneously notified the Security Council, as required by Article 51, that the United States was exercising its right to self-defense. In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective selfdefense following the armed attacks that were carried out against the United States on 11 September 2001. … Since 11 September, my Government has obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks. There is still much we do not know. Our inquiry is in its early stages. We may find that our self-defense requires further actions with respect to other organizations and other States.

35

S.C. Res. 1368, U.N. Doc. S/RES/1368 (September 12, 2001). S.C. Res. 1373, U.N. Doc. S/RES/1373 (September 28, 2001). 37 North Atlantic Treaty, Article 5, April 4, 1959, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246; Press Release, NATO, Statement by the North Atlantic Council (September 12, 2001); InterAmerican Treaty of Reciprocal Assistance, Article 3.1, September 2, 1947, 62 Stat. 1681, 1700, 21 U.N.T.S. 77, 93; Terrorist Threat to the Americas, Res. 1, Twenty-fourth Meeting of Consultation of Ministers of Foreign Affairs, Terrorist Threat to the Americas, OAS Doc. RC.24/ RES.1/01 (September 21, 2001). 38 Security Treaty, US-Aust.-N.Z., Article IV, September 1, 1951, 3 UST. 3420, 3423, 131 U.N.T.S. 83, 86; Pearson 2001, at 9. 36

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2 Responding to Transnational Terrorism Under the Jus ad Bellum The attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al-Qaeda organization have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation. Despite every effort by the United States and the international community, the Taliban regime has refused to change its policy. From the territory of Afghanistan, the Al-Qaeda organization continues to train and support agents of terror who attack innocent people throughout the world and target United States nationals and interests in the United States and abroad. In response to these attacks, and in accordance with the inherent right of individual and collective self-defense, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States. These actions include measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan …39

Despite the fact that the attacks fell on not only Al Qaeda, but also the de facto government of Afghanistan, the Taliban, criticism was nowhere to be heard. On the contrary, support for the operations was effusive. The United Kingdom participated from the beginning, and Australia, Canada, the Czech Republic, Germany, Italy, Japan, the Netherlands, New Zealand, Turkey, and the United Kingdom offered ground troops.40 Georgia, Oman, Pakistan, the Philippines, Qatar, Saudi Arabia, Tajikistan, Turkey, and Uzbekistan opened airspace and provided facilities to support operations.41 Further, the claim of the right to act in self-defense engendered de minimis controversy. China and Russia endorsed the operations, as did Arab states such as Egypt.42 International organizations were likewise sympathetic to the position. The European Union ‘‘confirmed its staunchest support for the military operations … which are legitimate under the terms of the United Nations Charter and of Resolution 1368 of the United Nations Security Council.’’43 The United Nations Security Council continued to adopt resolution after resolution reaffmning the right to self-defense, thereby implicitly accepting the Coalition operations as legitimate and lawful.44 Even the Organization of the Islamic Conference seemed to approve, simply urging the United States not to expand operations beyond Afghan territory.45

39

Letter from The Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN. Doc. S/2001/946 (Oct. 7, 2001), 40 I.L.M. 1281 (2001). 40 Murphy 2002. 41 Id. 42 Id. 43 Declaration by the Heads of State or Government of the European Union and the President of the Commission: Follow-up to the September 11 Attacks and the Fight against Terrorism, at 1, SN 4296/2/01 Rev. 2 (October 19, 2001). 44 E.g., S.C. Res. 1378, UN Doc. S/RES/1378 (November 14, 2001); S.C. Res. 1386, UN Doc. S/ RES/1386 (December 20, 2001); S.C. Res. 1390, UN Doc. S/RES/1390 (January 28, 2002). 45 Williams 2001, at A21.

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Of course, that the United States had acted militarily in self-defense did not preclude it and its partners around the world from taking other measures. For instance, the Security Council imposed financial sanctions on Afghanistan in Resolution l373, Saudi Arabia and the United Arab Emirates broke off diplomatic relations with the already isolated regime, and the largest international cooperative law enforcement effort in history was (and continues to be) mounted to identify, locate, arrest, and prosecute terrorists. However, with 9/11, international law became unequivocal vis-à-vis the propriety of using armed force to counter transnational terrorism. The military has been added as yet another arrow in the quiver of international counter-terrorism strategy.46

2.2.2.1 Self-Defense Against Non-State Actors Despite a paucity of scholarly or policy attention to self-defense against armed attacks by non-State actors acting autonomously from a State, extension of the right to such situations is supportable as a matter of law, not mere political expediency. In particular, note that Article 51 makes no mention of the nature of the entity that commits the offending armed attack, whereas the Article 2(4) prohibition on the use of force specifically refers to ‘‘Member states’’ acting in their ‘‘international relations’’ (i.e., against other States). This suggests there is no limitation on the use of defensive force against entities other than States, a position supported by the fact that neither Article 39 nor 41, which appear in the same chapter as 51, refer to States. Indeed, the Security Council has never restricted enforcement actions to those directed against States. For instance, it has created international tribunals to prosecute individuals charged with crimes against humanity, war crimes, and genocide.47 It would be incongruous to suggest that Article 51 should be interpreted differently. Curiously, the International Court of Justice appears to have done just that in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.48 There, the majority opined that Article 51 was irrelevant because Israel did not avow that the terrorist attacks the wall was intended to thwart were imputable to a foreign State.49 In doing so, the Court seemed to strictly apply, without directly referencing, its holding in Military and

46

Of course, the military is used in many nations for counter-terrorist purposes. What is new is the treatment of counter-terrorism as a classic military operation rather than ‘‘assistance to law enforcement.’’ 47 International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/ 827 (May 25, 1993); International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994). 48 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 Int’l Legal Materials 1009 (2004). 49 Id. at para 139, 43 I.L.M. at 1050.

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Paramilitary Activities in and Against Nicaragua. In Nicaragua, the Court found that actions of irregulars could constitute an armed attack if they were ‘‘sen[t] by or on behalf’’ of a State and if the ‘‘scale and effects’’ of the action ‘‘would have been classified as an armed attack … had it been carried out by regular armed forces.’’50 Judges Higgins, Kooijmans, and Buergenthal rejected the majority position, correctly pointing to: (1) the absence of mention of a State as the originator of an armed attack in Article 51 and (2) the clear intent of the Security Council to treat terrorist attacks as armed attacks (expressed, e.g., in Resolutions 1368 and 1373).51 Moreover, the question in the two ICJ cases differed materially. In Nicaragua, the issue was when did a State’s support of guerrillas justify imputing their acts to the State, such that the victim could respond in self-defense (individually or collectively) directly against the supporter. The Court did not address the issue at hand in the Wall case, i.e., whether the actions of a non-State actor justified the use of force directly against that actor in self-defense. In this regard, the one point of agreement in the Wall opinion was that acts against which the State is responding in self-defense have to be mounted from outside the State (unless they can be imputed to another State) before triggering the right to self-defense. The majority used this as a second basis for rejecting Israel’s claim to self-defense. It distinguished the situation ‘‘contemplated by Security Council resolutions 1368 (2001) and 1373 (2001),’’ arguing that ‘‘Israel exercises control in the Occupied Palestinian Territory’’ and ‘‘the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory.’’52 Judges Buergenthal and Higgins both (correctly) contested the Court’s extension of the principle to occupied territories. In their view, attacks originating therein meet the external attack criterion.53 The caveat of occupied territory aside though, terrorism occurring wholly within the State does not implicate the right of self-defense. Rather, it falls within the purview of domestic criminal law and, in certain circumstances, the law of non-international armed conflict.

2.2.2.2 The Nature of an ‘‘Armed Attack’’ It is now clear that terrorists may launch armed attacks as that phrase is understood in the Article 51 context. However, this leaves open the question of what constitutes an ‘‘armed attack.’’

50

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. V.S.), Merits, 1986 1.C.J. Rep. 14 (June 27), at para 195. 51 Construction of a Wall, supra note 48, Sep. Op. Judge Higgins, para 33; Sep. Op. Judge Kooijmans, para 35; Decl. Judge Buergenthal, para 6. 52 Id., Advisory Opinion at para 139. 53 Id., Sep. Op. Judge Higgins, para 34; Decl. Judge Buergenthal, para 6.

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Article 2(4) prohibits certain ‘‘uses of force’’, whereas the Article 51 condition precedent is an ‘‘armed attack.’’ The distinction is constitutively logical. The Charter was meant to create an organization and set norms that would ‘‘save succeeding generations from the scourge of war.’’54 Thus, the drafters set a low threshold for prohibited uses of force by States, while establishing a higher one before a State could use defensive force, absent United Nations acquiescence. In light of the different standards, uses of force that do not rise to the armed attack level must a priori exist. Although Article 2(4) applies only to States, the difference is relevant to this inquiry because there would perforce be ‘‘uses of force’’ by terrorists that would not activate the right to self-defense, thereby limiting the victim State’s response to one of classic law enforcement measures. In 1974, the General Assembly embraced the notion of a gap, albeit in the context of a use of force not amounting to an act of aggression. Article 2 of the Resolution on Aggression stated that the Security Council could ‘‘conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’’55 In Article 3(g), it included as an example of aggression ‘‘[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.’’ By this standard, there are self evidently uses of armed force that do not rise to the level of aggression because they are insufficiently grave. In Nicaragua, the International Court of Justice specifically addressed the gap when it distinguished between ‘‘the most grave forms of the use of force (those constituting an armed attack)’’ and other ‘‘less grave forms.’’56 In 2003, the Court, in Case Concerning Oil Platforms, referred approvingly to the ‘‘most grave forms’’ approach.57 The Nicaragua Court found that arming guerrillas and providing them logistic support might be a use of force, but did not constitute an armed attack.58 As noted, it also stated that armed attacks were actions of particular ‘‘scale and effects,’’ distinguishing them from ‘‘mere frontier incidents[s]’’,59 a distinction Professor Dinstein famously dismisses. [U]nless the scale and effects are trifling, below the de minimis threshold, they do not contribute to a determination whether an armed attack has unfolded. There is certainly no cause to remove small-scale armed attacks from the spectrum of armed attacks.60

54

UN Charter, pmbl. G.A. Res. 3314, Annex, Article 2, UN Doc. A/RES/3314 (XXIX) (Dec. 14, 1974), annexed Definition of Aggression. 56 Nicaragua, supra note 50, para 191. 57 Oil Platforms (Iran v. V.S.), Merits, 2003 I.C.J. 161, para 51 (November 6). 58 Nicaragua, supra note 50, para 195. 59 Id. 60 Dinstein 2005. 55

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In the context of State-on-State hostilities, there is much to recommend Professor Dinstein’s rejection of the Court’s suggestion that violence must rise above a certain level.61 Yet, the Court’s scale and effects criterion makes sense in the case of non-State actors. For States, the only options in the face of attack are selfdefense (including the collective variant) and Security Council enforcement action. Since the Council has a less than august record in coming to the rescue of States under attack, the notion of limiting a State’s recourse to defensive force is disquieting. By contrast, a rather robust law enforcement regime exists to deal with minor attacks by terrorists and other non-State actors. This being so, the Court’s ‘‘scale and effects’’ requirement is far less worrisome in the case of terrorism. The right to act in self-defense against terrorists is not unfettered. AIl defensive uses of force, including those directed against non-State actors, must meet three criteria—necessity, proportionality, and immediacy—that derive from the nineteenth century ‘‘Caroline Case’’ and the ensuing exchange of diplomatic notes between the United States and United Kingdom. There, Secretary of State Daniel Webster opined that defensive actions must reflect a ‘‘necessity of self-defense, instant, overwhelming, leaving no moment for deliberation.’’62 The I.C.J. has recognized the applicability of the first two criteria on multiple occasions. In Nicaragua, the Court confirmed their status as customary international law.63 It extended them to Article 51 self-defense in the advisory opinion, Legality of the Threat or Use of Nuclear Weapons.64 Lest there be any doubt, the Court confirmed the requirements in its Oil Platforms judgment.65

61

One wonders if the criticism would have been tempered had the Court included a State intent requirement. At the risk of oversimplifying, an armed attack is an intentional military attack or other intentional act resulting in, or designed to result in, immediate violent consequences (such as a computer network attack causing physical damage). For a discussion of this point, see Schmitt 1999. Viewed in this way, the distinction between training guerrillas and sending them out to do one’s bidding makes sense. It also explains the Court’s rather curious, and certainly confusing, reference to frontier ‘‘incidents.’’ Frontier incidents are usually brief encounters between forces facing each other across a border. They seldom represent a conscious strategic decision to initiate international armed conflict. Rather, they tend to be unplanned or, at most, communicative in nature. In the latter case, the intent is often to avoid conflict by signalling the seriousness of the dispute at hand. Of course, the fact that an incident does not amount to an armed attack in the Article 51 sense does not deprive those facing the violence of their right to defend themselves in individual self-defense. 62 30 Brit. Foreign St. Papers 193 (1843), reprinted in Jennings, The Caroline and McLeod Cases, 32 Am. J. Int’l L. p. 82, 89 (1938). 63 Nicaragua, supra note 50, para 194. 64 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, (July 8), at para 41. 65 Oil Platforms, supra note 57, paras 43, 73–74, 76.

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2.2.2.3 The Necessity Criterion The first of the principles, necessity, requires there to be no viable option other than force to deter or defeat the armed attack. This is a critical criterion in the context of terrorism. If law-enforcement measures (or other measures short of selfdefense) will assuredly foil a terrorist attack on their own, forceful measures in self-defense may not be taken. The issue is not whether law enforcement officials are likely to bring the terrorists to justice, but instead whether, with a reasonable degree of certainty, law enforcement actions alone will protect the target(s) of the terrorism. For instance, if members of a terrorist cell can confidently be arrested, that action must be taken in lieu of a military attack designed to kill its members. Factors such as risk of the terrorists eluding capture and the degree of danger involved in the capture are certainly relevant. Not only must there be confidence of success, law enforcement must alone be capable of deterring or defeating the threat (or ongoing attack) before actions in selfdefense are ruled out. The attacks of September 11 triggered the most intensive international law enforcement operations in history, largely targeted at al Qaeda or its affiliates. Yet, al Qaeda remained active, launching numerous spectacular attacks in the wake of 9/11. This being so, it is plain that military operations launched in selfdefense against the organization and its operatives met the necessity criterion.

2.2.2.4 The Proportionality Criterion The proportionality criterion addresses the issue of how much force is permissible in self-defense. It is widely misunderstood. Proportionality does not require any equivalency between the attacker’s actions and defender’s response. Such a requirement would eviscerate the right of self-defense, particularly in the terrorist context. For instance, terrorists may conduct a series of isolated bombings, yet the only way to preclude follow-on attacks, since surprise is their modus operandi, would be major air strikes against their base camps. Surely, it would be absurd to suggest that the greater use of force by the victim State is unlawful. Instead, proportionality limits defensive force to that required to repel the attack. This may be less or more than used in the armed attack that actuated the right to self-defense; in essence, the determination is an operational one. The availability of other options, especially law enforcement, would in part determine the permissible quantum and nature of the force employed. To the extent that law enforcement is likely to prevent follow-on attacks, the acceptability of large-scale military operations drops accordingly.

2.2.2.5 The Immediacy Criterion The third criterion, immediacy, imposes a temporal limitation on self-defense, both in advance of an attack and following one. The first issue is when does the

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right to act in self-defense mature? Professor Dinstein has conspicuously criticized notions of a right to anticipatory self-defense, i.e., defensive actions in anticipation of an attack. Instead, he asseverates that such actions may be ‘‘interceptive’’ at most. Professor Dinstein explains that ‘‘an interceptive strike counters an armed attack which is in progress, even if it is still incipient: the blow is ‘imminent’ and practically ‘unavoidable’.’’66 Professor Dinstein’s view of ‘‘in progress’’ is markedly broad: The crux of the issue, therefore, is not who fired the first shot but who embarked upon an apparently irreversible course of action, thereby crossing the legal Rubicon. The casting of the die, rather than the actual opening of fire, is what starts the armed attack. It would be absurd to require that the defending State should sustain and absorb a devastating (perhaps a fatal) blow, only to prove the immaculate conception of self-defense.67

It is so broad, that it embraces many actions that other scholars might well label ‘‘anticipatory.’’ Ascertaining when the ‘‘die has been cast’’ in instances of terrorism will prove far more challenging than in the cases of attacks launched by States. With attacks by States, there are often transparent activities of indications and warnings value: heightened political tensions, call-up of reserve forces, movement of forces towards the border, stand-down of air units, warships putting to sea, etc. Although it may be impossible to know the precise moment the blow will fall, the opponent will usually have a rough sense of when the attacker might cross the Rubicon. This is especially true in an era of global mass media, instant communications, and commercially available satellite imagery. Terrorism affords no such transparency. On the contrary, a defining characteristic of terrorist attacks is the absence of warning. As the target State usually enjoys a dramatic advantage in force capabilities, surprise is typically the only option available to counter the terrorist group’s asymmetrical disadvantage. Ominously, given growing terrorist access to weapons of mass destruction, miscalculation as to when a terrorist group is entering the Rubicon’s waters may prove catastrophic. This was a point expressly made in the US National Security Strategy of 2002. In that document, President Bush argued that the confluence of transnational terrorism and weapons of mass destruction necessitated a rethinking of the concept of anticipatory self-defense: For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional

66 67

Dinstein 2005, at 191. Id.

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means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning… The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.68

As a practical matter, the President was, of course, correct. In the unique circumstances of twenty-first century terrorism, target States will seldom know where and when an attack is to occur until it is too late. Yet, it would be foolhardy to wait until the launch of a particular terrorist strike before acting in self-defense. How, then, should the legality of interceptive (anticipatory) counterterrorist actions be measured? International law must always be interpreted in light of the context to which it is being applied and with sensitivity to the underlying purpose of the norm in question. In particular, as a form of self-help, self-defense has to be construed in a way that renders it meaningful; self-help must help. In the context of terrorism, it is essential to bear the very raison d’être of terrorist groups—conducting violent attacks on States and/or societies—in mind when assessing the propriety of anticipatory action. Even though the timing and location of an attack may be uncertain, there is near certainty that an attack will be conducted since that is the group’s very purpose. This fact distinguishes armed attacks conducted by States from those mounted by terrorists. States perform useful functions in the international system; indeed, the global architecture relies on States. That being so, a rebuttable presumption that States will act in accordance with international norms, especially those governing the use of force, attaches; hence the normative concerns about acting precipitously in self-defense. Such presumptions cannot logically attach to terrorist groups. On the contrary, an irrebuttable presumption that the organization will act outside the law should be at play. This reality shapes the interpretation of what it means to say a terrorist group has crossed the Rubicon. Under such circumstances, it is reasonable to characterize the convergence of two factors as the ‘‘launch’’ of a terrorist attack justifying interceptive (anticipatory) action: (1) formation of a group with an avowed purpose of carrying out attacks, and (2) acquisition (or material steps towards the acquisition) of the means to carry out such an attack. A combination of will and capability must coincide. Lest there be concern this standard sets the threshold for action in self-defense too low, recall that immediacy is but one of the three criteria applicable in defensive actions. In particular, necessity, with its requirement that law enforcement not suffice to prevent terrorist acts, serves as a brake on precipitous actions by the State. Combining these requirements, interceptive (anticipatory)

68

The White House, The National Security Strategy of The United States of America (September 2002), at 15 [hereinafter The White House, National Security Strategy of 2002].

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self-defense against terrorists is appropriate and lawful when a terrorist group harbors both the intent and means to carry out attacks, there is no effective alternative for preventing them, and the State must act now or risk missing the opportunity to thwart the attacks. It is action during the last viable window of opportunity a State has to defend itself. In the shadowy and secretive world of transnational terrorism, that window can close long before a terrorist strike takes place. Stated bluntly, when the opportunity presents itself, it may be necessary, and lawful, to kill a terrorist that you cannot capture, even though you do not know precisely when and where he or she will strike. The other side of the coin is the question of when terrorists may be struck after they act. This is an important query, for in most terrorist acts, the attackers escape. When they do not, as in the case of suicide bombings, the organization of which they are members lives on. Professor Dinstein has sagely contended that although ‘‘[w]ar may not be undertaken in self-defense long after an isolated armed attack,’’ ‘‘a war of selfdefense does not have to commence within a few minutes, or even a few days, from the original attack … [E]ven when the interval between an armed attack and a recourse to war of self-defense is longer than usual, the war may still be legitimate if the delay is warranted by the circumstances.’’69 In other words, he reasonably suggests a test of reasonableness in light of the circumstances prevailing at the time. But this is a State-centric analysis. It presumes that at a certain point, selfdefense is inappropriate because States should defer to non-forceful means of settling their disputes. Such a presumption does not apply to cases of transnational terrorism; the terrorist group would disband if it did not intend to continue the violence. Unlike States, and by definition, the mere existence of the group means the dispute between it and the State(s) will remain violent. The one exception is a terrorist group that morphs into a political organization, as some have suggested (rather optimistically) Hamas is doing. This being so, it does not make sense to treat multiple terrorist strikes by the same terrorist organization (or network such as al Qaeda) as isolated acts to which the law of self-defense applies separately. Rather, it is more appropriate to characterize them as a continuous attack, much as individual and distinct tactical engagements coalesce into a military campaign. Just as there are tactical pauses in military campaigns, so related terrorist attacks are often separated by periods during which the terrorist regroup and plan their next attack. For instance, experts trace attacks by al Qaeda against US assets back at least to the early 1990s.70 Sadly, they will likely stretch some distance into the future. Considered in this way, the immediacy criterion applies only to the first in an anticipated series of attacks. The remainder comprise a continuing terrorist campaign entitling the State to an extended period of self-defense. The criteria

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Dinstein 2005, at 242–243. Schmitt 2002, at 56.

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of necessity and proportionality continue to apply, for measures such as law enforcement may remain viable and useful. In this sense, a defensive ‘‘war’’ against a terrorist group differs from an all-out ‘‘war’’ of self-defense in response to, e.g., a major invasion by the military forces of a neighbouring State. In the latter case, the application of the criteria of necessity and proportionality differs, for necessity is self-evident once the attacker crosses the border and concerns about proportionality recede as the State’s survival is placed at risk.71

2.2.2.6 The Situs of Counter-Terrorist Operations More sensitive than the issue of when counterterrorist operations may be mounted, is that of where they may occur. Obviously, a State may conduct them on its own territory or the territory of another State that has consented. Thus, for instance, the 2002 strike against al Qaeda operatives in Yemen with the consent and cooperation of Yemeni intelligence was lawful, at least as to its venue.72 Counter-terrorist operations may also occur on the high seas, for it is accepted customary international law that States may engage in military action beyond the territorial waters of neutral States, so long as they act with due regard to the rights of others.73 But when can such operations be mounted without the consent of the State on which they take place? The dilemma is that the question involves two conflicting international law rights, self-defense on the part of the victim State and the right of territorial integrity enjoyed by the State in which the terrorists are located. Territorial integrity is a core principle of international law, one expressly codified in Article 2(4)’s prohibition on the use of force. The sanctity of borders precludes any non-consensual penetration of another sovereign’s territory.74 On the other hand, self-defense is also a core right in international law codified in the Charter. It is deemed so central to the State-based paradigm that States are allowed to use force to effectuate it.

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The International Court of Justice hinted at this point in its Nuclear Weapons Advisory Opinion: ‘‘[T]he Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of selfdefence, in which its very survival would be at stake.’’ Nuclear Weapons, supra note 64, para 97. 72 See text accompanying footnotes 93–94, infra. 73 NWP 1–14 M, supra note 4, para 2.6.3. 74 See also Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations: ‘‘Every State has a duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.’’ G.A. Res. 2625 (XXV), Annex, } 1, UN Doc. A/8082 (October 24, 1970). The resolution was adopted by acclamation. There are several possible exceptions, such as rescue of nationals abroad and humanitarian intervention.

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In assessing these two relevant aspects of international law, it is useful to recall that when international law rights collide, one need not prevail over the other. Rather, an accommodation should be sought between them that best maximizes and balances their respective underlying purposes. Assume for the sake of analysis that the State where the terrorists are located is not so complicit in the terrorism that it may be treated as having conducted the armed attacks itself, an issue that will be dealt with later. Rather, it either lacks the means to put an end to the terrorist activities on its soil or does not have the will to do so. In the latter case, the ‘‘host’’ State may sympathize with the group’s aims, benefit from its presence,75 or fear retaliation if it moves against the organization. Whatever the case, if the ‘‘host’’ State’s territory is unqualifiedly inviolable, the victim State might be deprived of any effective defense. This is particularly so with terrorism. Due to the secretive planning, surprise launch, and at times suicidal execution that characterize it, pre-emptive action may be the only viable defense. Professor Dinstein labels such actions ‘‘extra-territorial law enforcement.’’ He explains it thusly: Extra-territorial law enforcement is a form of self-defense, and it can be undertaken by Utopia against terrorists and armed bands inside Arcadian territory only in response to an armed attack unleashed by them from that territory. Utopia is entitled to enforce international law extra-territorially if and when Arcadia is unable or unwilling to prevent repetition of that armed attack.76

As he correctly notes, the assertion of such a right is far from exceptional. Quite to the contrary, the Caroline incident, the touchstone of the law of self-defense,77 involved extra-territorial self-defense. Forces under British command crossed into New York from Canada when British official protestations that rebels were being supported from US territory during the Mackenzie Rebellion of 1837 fell on deaf American ears. As noted by Lord Ashburton, who was negotiating with US Secretary of State Daniel Webster regarding the affair: I might safely put it to any candid man, acquainted with the existing state of things, to say whether the military commander in Canada had the remotest reason, on the 29th day of December, to expect to be relieved from this state of suffering by the protective intervention of any American authority. How long could a Government, having the paramount duty of protecting its own people, be reasonably expected to wait for what they had then no reason to expect?78

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As in the case of al Qaeda, which supported the Taliban in its conflict with the Northern Alliance. 76 Dinstein 2005, at 247. 77 For instance, the International Military Tribunal at Nuremberg cited the standard when rejecting the argument that Germany invaded Norway in self-defense in 1940. International Military Tribunal at Nuremberg, Judgment, 1 I.M.T. pp. 171, 207 (1946). 78 Jennings 1938 (quoting Lord Ashburton to Mr. Webster, July 28, 1842, Parliamentary Papers (1843), Vol. LXI; British & Foreign State Papers, vol. 30, at 195).

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A contemporary example of ‘‘taking the battle to the enemy’’ in foreign territory without the consent of the territorial sovereign was, of course, Operation Enduring Freedom. For the sake of analysis, put aside the issue the Taliban’s involvement in the attacks against the United States and whether it justified military action directly against the Taliban. That issue will be addressed in due time. Instead, and somewhat artificially, consider only the penetration of Afghan territory to attack al Qaeda. The Security Council had, on repeated occasions prior to 9/11, demanded that the Taliban police its own territory. In Resolution 1267 of October 1999, for instance, it insisted that the Taliban ‘‘cease the provision of sanctuary and training for international terrorists and their organizations, take appropriate effective measures to ensure that the territory under its control is not used for terrorist installations and camps, or for the preparation or organization of terrorist acts against other States or their citizens, and cooperate with efforts to bring indicted terrorists to justice.’’ Included was a specific demand that the Taliban turn over Usama bin Laden.79 It reiterated its demands in December 2000.80 Once attention focused on al Qaeda as the culprit in the September 11 attacks, the United States insisted on Taliban cooperation in eradicating the al Qaeda presence in Afghanistan. Some demands were conveyed through Pakistan, which had maintained relations with the Taliban and thereby served as a useful intermediary. Others were made publicly, such as that expressed by President Bush during an address to a joint session of Congress: ‘‘Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist and every person in their support structure to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating.’’81 Following a final ultimatum on October 6,82 the President ordered US forces into action the next day. The overture to OEF illustrates a further facet of the requisite balancing between self-defense and territorial integrity. As in the Caroline case, the aggrieved party, now the United States, conveyed demands that the territorial State take action to put an end to the threat emanating from its territory. The US-led coalition, like the British over 160 years earlier, only attacked once it had afforded the ‘‘host’’ State, Afghanistan, ample opportunity to rectify the intolerable situation. This approach represents a fair accommodation of that State’s right to territorial integrity. A State taking defensive action cannot be deprived of its right to 79

S.C. Res. 1267, } 2, UN Doc. S/RES/1267 (October 15, 1999). The previous year it had also demanded that the ‘‘Taliban stop providing sanctuary and training for international terrorists and their organizations, and that all Afghan factions cooperate with efforts to bring indicted terrorists to justice.’’ S.C. Res. 1214, } 13, UN Doc. S/RES/I 2 14 (December 8, 1998). See also S.C. Res. 1193, UN Doc. S/RES/1193 (August 28, 1998). 80 S.C. Res. 1333, UN Doc. S/RES/1333 (December 19, 2000). 81 Address Before a Joint Session of the Congress on the United States, Response to the Terrorist Attacks of September 11, 37 Weekly Comp. Pres. Docs. 1347, 1348 (September 20, 2001). 82 President’s Radio Address, 37 Weekly Comp. Pres. Docs. 1429 (October 6, 2001).

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defend itself, but at the same time must allow the host State a reasonable opportunity to remedy matters before suffering a non-consensual violation of its territory. Lest it seem overly aggressive to allow a victim State to violate another’s borders, recall that States have an obligation to police their territory, ensuring it is not used to the detriment of others. In the classic 1927 Permanent Court of Justice case, S.S. Lotus, John Basset Moore, writing in dissent (on other grounds), noted that ‘‘it is well settled that a State is bound to use due diligence to prevent the commission within its dominions of criminal acts against another nation or its people,’’83 citing for support the 1887 US Supreme Court case United States v. Arjona.84 In 1949, in its first case, Corfu Channel, the International Court of Justice addressed the issue head on.85 The facts are pertinent. In May 1946, Albanian shore batteries fired on two British cruisers transiting the Corfu Strait, in Albanian waters. The UK. claimed the ships were entitled to pass through the strait in innocent passage, a contention contested by the Albanians. The British sent word that in the future they would return fire if fired upon. That October, four British warships transited the Corfu Strait. Although previously swept, two struck mines, resulting in the loss of 45 lives. When London transmitted a Diplomatic Note stating it intended to sweep the channel, Tirana replied that doing so would violate Albania’s sovereignty. In November, the British Navy swept the channel, cutting 22 mines, all of German make. The Court faced two questions: (1) Is Albania responsible for the explosions, such that it has a duty of compensation, and (2) Did the UK. violate international law through its naval actions in October and November? As to the first, the Court concluded that since the mines could not have been laid without Albania’s knowledge, it bore responsibility based on ‘‘certain general and well recognized principles,’’ including ‘‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of others.’’86 With regard to the second, the October passage need not detain us. However, the November action was styled by the British as, in part, self-help. The Court rejected the argument, noting, ‘‘respect for territorial sovereignty is an essential foundation of international relations,’’ but qualified this finding with the caveat that Albania’s ‘‘failure to carry out its duties after the explosions, and the dilatory nature of its diplomatic notes’’ were ‘‘extenuating circumstances.’’87 The Court’s opinion is relevant in two regards. First, it makes clear that State A has a duty to prevent its territory from being used in a manner that negatively affects an international law right of State B. Applied to terrorism, State A must not

83 84 85 86 87

S.S. Lotus (Fr. v. Turk.) 1927 P.C.I.J. (ser. A) No. 10, at 4, 88 (Moore, J., dissenting). 120 US 479 (1887). Corfu Channel (UK. v. Alb.), 1949 I.C.J. 4. Id. at 22. Id. at 55.

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allow its territory to serve as a terrorist base of operations or sanctuary, or be used in any other manner that would facilitate terrorism against State B. Second, although highlighting the centrality of territorial sovereignty, the Court’s reference to extenuating circumstances demonstrates that the right is conditional. Although less than obvious in the written opinion, in Corfu Channel the Court balanced competing rights by determining that the right of innocent passage must yield to the right of territorial sovereignty, at least to the extent that force may not be used to secure the former. The International Court of Justice again turned to the issue of responsibility in United States Diplomatic and Consular Staff in Tehran.88 The facts are notorious and well known. In November 1979, Iranian radicals seized the US Embassy in Tehran and the Consulates in Tabriz and Shiraz, taking hostage American diplomats and other US citizens. Although the United States requested assistance from the Iranian government, none was forthcoming. On the contrary, the Iranian government soon expressed support for the seizure. The United States mounted a failed rescue attempt in April 1980. After 444 days in captivity, the Iranians released the hostages on the day President Ronald Reagan was sworn in as President. The Court held that Iran’s failure to protect the diplomatic premises and subsequently take action to free the hostages violated not only the 1961 and 1963 Vienna Conventions on Diplomatic Relations and Consular Relations respectively, but also ‘‘obligations under general international law.’’89 As to the failed rescue attempt, it expressed concern that the United States had acted despite the existence of a provisional order directing no action be taken by either side that might aggravate tensions. However, it noted that the US action had no bearing on Iran’s responsibility for failure to protect the diplomatic facilities and staff. Thus, again we see the Court emphasizing that States shoulder a legal obligation to safeguard the interests of other States against acts committed from their soil, at least when they have the means to do so. Aside from the ICJ opinions, a number of other sources support the obligation to police one’s own territory. Article 2(4) of the International Law Commission’s 1954 Draft Code of Offences against the Peace and Security of Mankind, for instance, provides that ‘‘[t]he organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions,’’ is an offense against ‘‘the peace and security of

88

United States Diplomatic and Consular Staff in Tehran (US v. Iran), 1980 I.C.J. 3 (May 24). Id., para 62. Vienna Convention on Consular Relations, April 23, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.

89

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mankind.’’90 Note the depiction of mere ‘‘toleration’’ as a crime in international law. The same proscription appears in the 1970 General Assembly Resolution, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. It provides that ‘‘Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present para involve a threat or use of force.’’91 In 1994, the Assembly addressed the subject of terrorism directly in its Declaration on Measures to Eliminate Terrorism. By the terms of the resolution, States may not ‘‘acquiesce’’ in ‘‘activities within their territories directed towards the commission of [terrorist] acts.’’ More to the point, they have affirmative ‘‘obligations under the Charter of the United Nations and other provisions of international law with respect to combating international terrorism and are urged to take effective and resolute measures in accordance with the relevant provisions of international law and international standards of human rights for the speedy and final elimination of international terrorism.’’92 The resolution goes on to delineate specific measures to achieve these aims. Although ‘‘soft law,’’ these instruments plainly evince a broad consensus that States bear a duty to act against terrorists located on their territory. Recall that the Security Council also spoke to the issue, for example, when it directed the Taliban to take action against al Qaeda and other terrorist groups operating from Afghanistan. In a more general sense, Resolution 1373, drafted in the immediate aftermath of 9/11, amounted to a watershed in terms of imposing requirements on States to combat terrorism. In particular, States are now prohibited from providing ‘‘any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists’’ and obligated to, inter alia, ‘‘[t]ake the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; [d]eny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; and [p]revent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.’’93 Thus, an assessment of the lawfulness of penetrating borders to conduct antiterrorism operations involves more than a ‘‘simple’’ balancing of two conflicting international law rights. It also entails breach (whether intentional or due to an

90

Draft Code of Offences Against the Peace and Security of Mankind, (1954) 2 Y.B. Int’l L. Comm’n 150, UN Doc. A/CN.4/SER.A/1954/Add.1. 91 Declaration of Friendly Relations, supra note 74. 92 G.A. Res. 49/60 UN Doc. A/RES/49/60 (December 9, 1994), annexed Declaration, paras 4–5. 93 S.C. Res. 1373, UN Doc. S/RES/1373 (September 28, 2001).

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inability to comply) of a duty owed other States by the State on whose territory the terrorism-related activities are occurring. Analysis will soon turn to the issue of when the actions of the ‘‘host’’ State merit treating that State as if it had itself conducted an ‘‘armed attack.’’ But the inaction of that State in policing its territory is relevant to determining when its borders may be crossed to conduct counterterrorist operations.

2.2.2.7 Limits on Cross-Border Operations The understandable hesitancy to sanction violation of another State’s territorial integrity must be tempered by the fact that doing so in self-defense is only permissible once that State has failed in its duty to police that territory, either volitionally or unavoidably. Given the serious affront to territorial integrity, the ‘‘right’’ to cross the border must be interpreted very narrowly. The victim State must make a demand on the ‘‘host’’ State to satisfactorily cure the situation (i.e., comply with the duty described above), and the latter must be afforded sufficient opportunity to do so, at least to an extent consistent with the realities the victim State’s effective defense. It may not strike any targets of the ‘‘host’’ government, nor anything else unconnected with the terrorist activity. Indeed, if it does so, it will have committed an armed attack against the host State, which would in turn allow that State to lawfully use force against the intruders in self-defense. Of course, since the State conducting the operation is, to the extent it remains within the limitations, exercising a legitimate international law right, the host State may not interfere with said operations. If it does, that State commits an armed attack, thereby permitting the counterterrorist operation to expand to government personnel and facilities constituting military objectives under international humanitarian law (since an international armed conflict now exists in light of the interstate hostilities). The intrusion must be limited in time, space, and purpose. As soon as the menace has effectively been quashed, the counterterrorist units must withdraw. Further, the operation must be limited geographically to the minimum territorial infringement consistent with mission success. Both requirements derive from the principle of proportionality in the law of self-defense. Finally, the operation must be intended solely to accomplish a counter-terrorist purpose. It cannot, for instance, be a subterfuge designed to assist one side in a civil war, intimidate the ‘‘host’’ State, etc. Of course, if such a result is the concomitant consequence of the action, so be it; but it cannot be the underlying purpose. The United States is conducting operations along these lines. At times, it does so with the cooperation, or at least blessing, of the State on whose territory they are mounted. For instance, and as briefly mentioned earlier, in 2002 a CIA-operated Predator unmanned aerial vehicle launched a Hellfire missile to destroy a vehicle in which Qaed Senyan al-Harthi, a senior al-Qaeda member, was riding. Al-Harthi had been involved in the bombing of the USS Cole in 2000 and, given his role

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in the organization, was a key player in current and future operations.94 Yemeni intelligence cooperated in the strike.95 Given Yemeni consent and the clear need to act defensively, the operation met the criteria outlined above. Al-Harthi was complicit in previous terrorist attacks and surely intended to continue operations against the United States; in that sense, he was engaged in an ongoing campaign, thereby rendering the US strike legitimate under the immediacy criterion. It was necessary in that lesser alternatives such as law enforcement were not viable at the time and there was no certainty that later law enforcement actions would have put him behind bars before he could attack again. Finally, it was proportionate, for no lesser use of force would have sufficed to kill or neutralize al-Harti, nor was any practically possible in the circumstances. More recently, the United States conducted air strikes in Pakistan targeting Ayman al-Zawahiri, al Qaeda’s second in command. The unsuccessful January 2006 operations, which killed 18 civilians, sparked nationwide protests. Pakistan’s President, Pervez Musharraf, condemned the operation, stating, ‘‘It is an issue of our sovereignty and of our people’s sensitivities … We’re against such attacks.’’ He also denied that Pakistan had provided the intelligence necessary to conduct them.96 Such claims must be taken with a grain of salt. Musharraf is conducting a delicate balancing act between support for US counterterrorism efforts and avoidance of domestic unrest and isolation in the Muslim world. Of course, although Pakistan’s intelligence agencies and military have been cooperating closely with their US counterparts in the war on terror, ‘‘plausible deniability’’ is often an integral component of such involvement. Indeed, recall that President Bush visited Pakistan in March 2006, in part to demonstrate appreciation for Musharrafs support. This would have been a strange visit to have made if the United States had in fact brazenly violated Pakistani territory. However, taking President Musharraf’s public stance at face value, the attack would nevertheless have arguably fallen within the normative framework set forth. Al Zawahiri is a highly elusive linchpin in the continuing al Qaeda campaign against the United States. Opportunities to ‘‘take him out’’ rarely present themselves and, given the remoteness of the Banjur region, the prospects of a mounting a successful operation to capture him were slim to non-existent. Had the United States taken the time to coordinate its operations with Pakistan (assuming for the sake of analysis that it did not), it would have risked missing the opportunity to act, which, apparently, it did in any event. Pakistan’s security forces lacked the assets to mount a timely attack with high confidence. As Musharraf himself noted when commenting on the affair: ‘‘We cannot compare our capabilities with the US’’

94

Profile: Ali Qaed Senyan al-Harthi, BBC News World Report, November 5, 2002, available at http://news.bbc.co.uk/2/hi/middle_east/2404443.stm. 95 Dworkin 2002. 96 Bennhold 2006, at 7.

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Finally, the use of a CIA-controlled Predator to conduct the attack was certainly the least invasive option available.97 That the operation was unsuccessful is of only slight relevance. In assessing the lawfulness of military operations, the crux of the issue is the reasonableness of having acted in the circumstances based on information reasonably believed reliable at the time. There has been no convincing evidence that the United States’ belief that it had al Zawahiri in the cross-hairs was precipitous or ill-reasoned. Of course, there is the matter of the resulting 18 civilian deaths. Civilian deaths are always tragic, but the international humanitarian law principle of proportionality acknowledges that they can be unavoidable. In the conduct of hostilities context, proportionality requires that collateral damage to civilian objects and incidental injury to civilians caused during military operations not to be excessive in relation to the concrete and direct military advantage anticipated to result from the attack.98 Al Zawahiri constituted a target of enormous value in the war on terrorism, and although civilian deaths are tragic, State practice has countenanced levels of incidental injury in excess of this in operations directed against lesser objectives. Proportionality in this context must not be confused with the jus ad bellum principle (discussed above) that is one criterion for self-defense. Critics will assert, fairly, that the framework suggested for cross-border counterterrorist operations is subjective and, therefore, ripe for abuse. While they are correct, the alternative, elevating territorial integrity to a position of unconditioned supremacy over the right to self-defense, is inconsistent with the realities of a twenty-first century beset by transnational terrorism in which the prospect of the use of weapons of mass destruction (WMD) by terrorists grows steadily. Lest it be rendered obsolete, law must be interpreted in light of the context in which it is to be applied, and with fidelity to its core purpose, in this case global order. The normative framework outlined above does just that without undue violence to the received understanding of the law of self-defense. 2.2.2.8 Operations Against State-Sponsors A more difficult endeavour is determining when a victim State may treat the actions of terrorist group as an armed attack not only by the group, but also by a State that has in some way provided it support. Until recently, the generally cited, albeit not universally accepted, standard was that enunciated in the Nicaragua case.99 There, the Court opined that ‘‘an armed attack must be understood as including not merely action by regular armed forces across an international border, but also ‘the sending by or on behalf of a state of armed bands, groups, irregulars 97

Gall and Jehl 2006, at 3. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, at Articles 51.5(b) and 57.2(a)(iii). 99 See, e.g. the dissenting opinion of Judge Schwebel in the Nicaragua case, esp. para 154 ff. 98

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or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein.’’100 It drew on the Definition of Aggression annexed to General Assembly Resolution 3314 (XXIX) for the quoted text,101 arguing that the definitional extract reflected customary internal law. However, according to the Court, the activities of the guerrilla force, to qualify as an armed attack, should be of a ‘‘scale and effects’’ equivalent to those that would qualify as an armed attack if conducted by regular forces, citing ‘‘acts by armed bands where such attacks occur on a significant scale,’’ but explicitly excluding a ‘‘mere frontier incident.’’102 The Court went on to determine that providing ‘‘weapons or logistical or other support’’ did not suffice. Such activities might amount to a threat or use of force, or wrongful intervention in the external or internal affairs of the target State, but not armed attacks. This latter point is key. Whether an armed attack has occurred is a different matter than that of a State’s responsibility (under international law) for the commission of acts to which it is in some way connected. States undoubtedly shoulder a degree of international responsibility for support to terrorists or other armed groups.103 Recall the soft law texts cited above, as well as the General Assembly’s 1996 Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, which reiterated the obligation of States to refrain from ‘‘financing, encouraging, providing training for or otherwise supporting terrorist activities.’’104 The issue at hand, however, is the point at which a State stands in the shoes of the terrorist group it backs. By the Nicaragua yardstick, the supporting State must send the terrorists, effectively control them, or be substantially involved in the 100

Nicaragua, supra note 50, at para 195. G.A. Res. 3314 (XXIX), supra note 55. 102 Nicaragua, supra note 50, para 195. 103 According to Article 8 of the International Law Commission’s Articles of State Responsibility, 101

conduct of a person or group shall be considered an act of State under international law if the person or group of persons is in fact acting on the instruction of, or under the direction or control of, that State in carrying out the conduct. International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts (2001), with Commentary, at http://untreatyun.org/ilc/texts/instruments/english/commentaries/ 9_6_2001.pdf. The Commentary to the article explains: More complex issues arise in determining whether conduct was carried out under the direction or control of a State. Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control. Id. at 104. 104 G.A. Res. 51/20 (December 17, 1996).

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execution of their attack before being deemed to have committed an armed attack itself.105 The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia rejected the effective control test in its 1999 Tadic decision. Considering whether an international armed conflict existed in Bosnia-Herzegovina by virtue of the Federal Republic of Yugoslavia’s control over Bosnian Serb forces, the Chamber adopted a more relaxed standard: ‘‘overall control going beyond mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations for acts of an ‘‘organized and hierarchically structured group.’’106 Although the precise issue was not armed attack, the Appeals Chamber was commenting on the International Court of Justice’s standard in that regard. In the case of the 9/11 attacks, Taliban support of al Qaeda rose to neither the Nicaragua level, nor that of Tadic. Whilst true that the Taliban tolerated the presence of al Qaeda, and arguably offered sanctuary, they exercised no meaningful control over the organization. Nor has any evidence been produced that the Taliban were accomplices in the 9/11 attacks. Indeed, they did not even provide financing, training, or materiel to al Qaeda, standards which both the ICJ and ICTY rejected as meeting the armed attack threshold. Quite the contrary, the Taliban was in the dependency relationship to some extent, for al Qaeda supported them in their fight with the Northern Alliance, both in terms of financing and fielding the 055 Brigade. Nevertheless, as discussed, the international community fully supported the strikes on the Taliban. Indeed, over a month after Operation Enduring Freedom began, the Security Council condemned the Taliban ‘‘for allowing Afghanistan to be used as a base for the export of terrorism by the Al-Qaida network and other terrorist groups and for providing safe haven to Usama Bin Laden, Al-Qaida and others associated with them’’ and expressed its support for ‘‘the efforts of the Afghan people to replace the Taliban regime.’’107 This is significant, for the Coalition’s participation turned the tide in the civil war between the Taliban and Northern Alliance. Thus, to the extent that the Council supported regime change, it implicitly also supported Coalition military operations against the Taliban. What does this mean for the jus ad bellum? The general principle that States can technically commit an armed attack through association with non-State actions (that would constitute an armed attack if committed by a State’s armed forces) remains intact. What appears to have changed is the level of support that suffices. It would seem that in the era of transnational terrorism, very little State support is necessary to amount to an armed attack; at least in this one case, merely 105

On an analogous basis, the International Court of Justice in Nicaragua rejected assertions of US responsibility for the Contras’ actions in violation of international humanitarian law. The Court stated that such activities ‘‘would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts … For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the State had effective control of the military or paramilitary operations.’’ Nicaragua, supra note 50, at para 115. 106 Prosecutor v. Tadic, Case IT-94-1, } 145, 120 (1999). 107 S.C. Res. 1378, pmbl, UN Doc. S/RES/1378 (November 14, 2001).

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harbouring a terrorist group was enough. This is a far cry from Nicaragua’s ‘‘sending by or on behalf’’ or Tadic’s ‘‘overall control.’’ Has the law changed? In a sense, no. Instead, normative interpretation appears to have shifted in the face of changed circumstances. Such shifts are entirely appropriate, for international law exists to serve global needs for security and other common goods. We should not be surprised when the normative expectations of the international community evolve in the face of new threats. This is particularly so in the absence of lex scripta directly on point, as is the case with regard to attributing actions of non-State actors to States. The international community has naturally reacted very aggressively to both transnational terrorists intent on mass casualty attacks and those States that facilitate their activities. As any threat to the community evolves, so too must the operational code governing responses thereto designed to preserve common interests and values. The demise of Cold War bipolarity renders such aggressiveness less disruptive to global order. During the Cold War, many violent nonState actors enjoyed some degree of backing from one of the opposing camps. Reacting forcefully to client States that supported terrorism risked superpower conflict. Thus, the international community, through State practice and judicial pronouncement, set the legality threshold for such responses very high. That paradigm has been turned on its head. Today, failure to take strong action against either terrorists (perhaps armed with weapons of mass destruction) or their sponsors risks catastrophe. Moreover, it is in the battle against transnational terrorism that we see perhaps the greatest degree of meaningful cooperation between powerful States, thereby limiting the risk that forceful reactions will escalate into major interstate armed conflict. The extent to which the ‘‘armed attack’’ bar has been lowered remains to be seen. Was the Taliban case unique? After all, the Taliban were international pariahs, condemned widely for horrendous human rights abuses and isolated in the international community. The almost audible sigh of relief upon their ouster from power was not only the product of angst over their willingness to allow al Qaeda to operate freely within Afghanistan, but also of near universal contempt resulting from their domestic behavior towards the long-suffering Afghan people. It is irrefutable that both community order and global values were advanced by their defeat. This reality begs the question of whether States meant to relax normative understandings on the use of force against States tied to terrorism or they were simply celebrating a legitimate, albeit unlawful, regime change.

The Case of Iraq The case of Iraq sheds a bit of light on the issue of when State sponsors may be deemed to have themselves committed an armed attack. It does so through negative inference because although discussions of Iraqi support of terrorism prominently occupied pre-attack discourse, self-defense was notably absent in the legal justification proffered for operation Iraqi Freedom (OIF).

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In Resolution 1441 of November 2002, the Security Council stated that it ‘‘deplored’’ the fact that Iraq had not complied with its obligations regarding terrorism.108 Those obligations had been set forth in Resolution 687 of April 1991, which captured the terms of the 1990–91 Gulf War cease free.109 In 687, the Council condemned threats made by Iraq during the conflict to ‘‘make use of terrorism against targets outside Iraq’’ and required Iraq to formally inform the Council that ‘‘it will not commit or support any act of international terrorism or allow any organization directed towards the commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods, and practices of terrorism.’’110 The extent and nature of Iraq’s ties to terrorism prior to OIF have proven murky at best. However, a glimpse of what the United States believed regarding Iraqi involvement came in February 2003 when Secretary of State Colin Powell briefed the Security Council in the unsuccessful effort to secure a use of force resolution.111 The broadest accusation was that ‘‘Iraq … harbours a deadly terrorist network headed by Abu Musab al-Zarqawi, an associate and collaborator of Osama bin Laden and his Al Qaeda lieutenants.’’ Powell asserted that al-Zarqawi had moved a training camp from Afghanistan to northeastern Iraq when the Taliban fell. Although the area was under the control of the Ansar al-Islam movement, not the Iraqi government, Saddam Hussein reportedly had an agent in the organization that was providing safe haven to some of Zarqawi’s lieutenants and other members of al Qaeda. Further, al Qaeda affiliates based in Baghdad were reportedly directing operations throughout the country. Powell stated that the United States had transmitted information on Zarqawi’s whereabouts to the Iraqis through a friendly intelligence service, but that Iraq did nothing to capture him. Finally, Powell asserted a detainee had admitted during interrogation that Iraq had provided training in chemical and biological weapons to two Al Qaeda operatives, an admission since discredited. An intensive search throughout Iraq during the occupation turned up very little additional evidence of Iraqi support to terrorism. However, as a matter of law, the question is whether the level of support that the United States and its Coalition partners believed Iraq was providing at the time they launched OIF rose to the ‘‘armed attack’’ level. The United States was apparently uncertain it could credibly make such a case, for, having failed to convince the Security Council to mandate military action on the basis of Iraqi ties to terrorism and weapons of mass destruction, it refrained from formally asserting any claim of self-defense when it did attack. Instead, the United States and United Kingdom proffered a highly

108

S.C. Res. 1441, UN Doc. S/RES/1441 (November 8, 2002). S.C. Res. 687, UN Doc. S/RES/687 (April 3, 1991). 110 Id. 111 Address by Secretary of State Colin Powell to the Security Council, UN Doc. S/PV.4701 (5 February 2003), at 14–17. 109

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legalistic justification-material breach of the 1991 cease-fire terms.112 Indeed, in their formal letters to the Security Council setting forth the legal basis for military action, neither country mentioned terrorism, not even in the context of a breach of the cease-fire obligations vis-à-vis terrorism.113 That the partners chose a highly technical (albeit correct) justification certain to generate international political and legal controversy rather than self-defense—the always preferred justification for action without Security Council mandate—demonstrates they understood a claim of self-defense against State support to terrorism would likely prove unconvincing. While the community reaction to OEF suggests a modified operational code for when support to terrorists may be treated as an ‘‘armed attack,’’ the reticence of the United States and United Kingdom to use the principle to justify OIF reveals its limits. The Afghanistan case suggests that knowingly and willingly allowing territory to serve as a base of terrorist operations may now represent a degree of complicity sufficient to amount to an ‘‘armed attack.’’ Iraq, on the other hand, seems to illustrate that the scale and scope of terrorist operations occurring on the territory in question must be significant; convincing evidence of the activities, as well as of the willingness of the host State to allow them to take place, must exist; and the host State must be warned to put an end to terrorist operations on its soil and provided ample opportunity to do so before a forceful response in self-defense is permitted.

2.3 The Case of Pre-Emptive Self-Defense The issues discussed above have coalesced into formal strategy pronouncements by the United States and other nations. Most significant in this regard is the pre-emption doctrine, enunciated by the US National Security Strategy 2002 (2002 NSS) in the extract cited earlier.114 The 2002 NSS also reflected the US conviction that it was at war with terrorists and would, as it had a year earlier, deal harshly with States complicit in terrorist activity: The war against terrorists of global reach is a global enterprise of uncertain duration. America will help nations that need our assistance in combating terror. And America will hold to account nations that are compromised by terror, including those who harbor terrorists—because the allies of terror are the enemies of civilization. The United States

112

For a discussion of this point, see Schmitt 2004. Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/ 2003/351 (March 21, 2003); Letter dated 20 March 2003 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2003/350 (March 21, 2003). 114 The White House, National Security Strategy of 2002, supra note 68, at 15 (see text accompanying footnote 68 supra); see also The White House, Strategy for Combating Terrorism (February 2003), at 2. 113

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and countries cooperating with us must not allow the terrorists to develop new home bases. Together, we will seek to deny them sanctuary at every turn.115

Yet despite the ominous timing of its issuance as events in Iraq cascaded towards war, and although it purported to be a new adaptation of the law of selfdefense in the face of rogue states and terrorists, ultimately the United States chose not to assert pre-emption as the legal basis for OIF. In March 2006, the United States issued a new National Security Strategy (2006 NSS), one retaining all of the key elements of its predecessor. One interesting point is that the discussion of pre-emption occurs primarily in the section on weapons of mass destruction, whereas in the 2002 version it was prominent vis-à-vis both terrorism and WMD. In relevant part, the new strategy provides: Our strong preference and common practice is to address proliferation concerns through international diplomacy, in concert with key allies and regional partners. If necessary, however, under long-standing principles of self defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption … We will always proceed deliberately, weighing the consequences of our actions. The reasons for our actions will be clear, the force measured, and the cause just.116

Whether this placement represents a subtle change in approach or merely reflects the current strategic context, one in which the war on terrorism is well underway and Iran’s nuclear ambitions have moved to the forefront of global attention, is unclear. The document itself asserts that ‘‘The place of preemption in our national security strategy remains the same.’’117 The new NSS comes out even more strongly than the 2002 version against State support for terrorism, making ‘‘deny terrorist groups the support and sanctuary of rogue states’’ one of its four short term objectives. The United States and its allies in the War on Terror make no distinction between those who commit acts of terror and those who support and harbor them, because they are equally guilty of murder. Any government that chooses to be an ally of terror, such as Syria or Iran, has chosen to be an enemy of freedom, justice, and peace. The world must hold those regimes to account.118

Although the 2002 NSS evoked a fire storm of controversy, nothing regarding terrorism strategy in either it or its successor runs counter to any of the legal norms analyzed above. As the former Legal Adviser to the Department of State correctly noted in 2003,

115

The White House, National Security Strategy of 2002, supra note 68 at 3–4. The White House, The National Security Strategy of the United States (March 2006), at 23 [hereinafter The White House, National Security Strategy of 2006]. 117 Id. 118 Id. at 12. 116

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2 Responding to Transnational Terrorism Under the Jus ad Bellum In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use preemption as a pretext for aggression, to be for or against preemption in the abstract is a mistake. The use of force preemptively is sometimes lawful and sometimes not.119

So long as the State is acting in the likely last window of opportunity to defend itself effectively against a future terrorist attack in circumstances where alternatives such as law enforcement are not certain to suffice, the preemptive operation is available as a matter of law. If the State acts prior to the maturation of these conditions, it is acting preventively, not preemptively.120 The distinction is crucial, for the preventive use of force is unlawful. For instance, if State A attacks WMD storage facilities in State B because it has hard intelligence that B is about to transfer WMD to a terrorist group which has previously carried out attacks against A, the action is preemptive in nature. However, if it strikes in the absence of actionable intelligence, but simply out of concern that B may effect a transfer to terrorists one day, it has acted preventively. Preventive action is based solely on a potential opponent’s capability to carry out an attack (or imminent acquisition of such capability). Preemption requires both capability and intent.121 In December 2004, a High Level Panel appointed by the UN Secretary-General issued A More Secure World: Our Shared Responsibility. In part, the report addressed self-defense and its relationship to actions under Chapter VII of the UN Charter. Although the panel avoided use of the controversial term ‘‘preemption,’’ it embraced the notion, while rejecting that of preventive attack. (…) [A] threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons-making capability. Can a State, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defense, not just preemptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)? (…) The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment—and to visit again the military option.122

In other words, the panel adopted the approach advanced in this chapter.

119

Taft IV and Buchwald 2003. The confusion and controversy resulting from release of the 2002 NSS was in part caused by use of the word ‘‘prevent’’ in the title of both the terrorism and WMD chapters. 121 Of course, the preemptive action must comply with the other requirements of self-defense. 122 A More Secure World: Our Shared Responsibility, Report of the High Level Panel on Threats, Challenges, and Change, UN Doc. A/59/565, at 54–55 (December 12, 2004). 120

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There is one aspect of the US preemptive doctrine, though, that has proven contentious—the commitment to act ‘‘even if uncertainty remains as to the time and place of the enemy’s attack.’’ The 2002 statement in this regard was retained in the 2006 NSS.123 If the statement implies that the United States might act without knowing whether a potential enemy will strike, then a proposed action would be preventive and, therefore, unlawful. On the other hand, if, as the plain text denotes, the United States knows the attack is coming, but does not know precisely when and where, then the action would be judged by the criteria outlined earlier, particularly those of acting in the last window of opportunity and the absence of viable alternatives. It cannot be otherwise in an era of weapons of mass destruction that can be unleashed by groups who often pay no heed to their own survival. Authorities seldom know where and when a terrorist strike will occur. After all, discovery of a prospective attack usually foils it. Consequently, the terrorist modus operandi involves doing everything possible to foster uncertainty as to time and place. To impose a burden of certainty on a potential victim State would be ludicrous. The only bearing that knowledge as to time and place has on the lawfulness of an action in self-defense is in assessing whether alternatives to the use of military force are available and whether the proposed defensive action may be the last opportunity to thwart whatever attack is coming. The uncertainty reference could also be interpreted as comment on the quality of the evidence upon which action is based, in other words, as an assertion that the United States will act on less than fully reliable information given the stakes involved with terrorism and WMD. This is an incorrect characterization, for the uncertainty refers to time and place of the attack, not to whether an attack will occur. However, in an abundance of analytical caution, let us assume the latter is the case. Since uncertainty often shrouds international security matters, how good must the evidence be before a State may act in self-defense? Recall criticism of the 1998 strike into Sudan. Also recall the extent to which failure to discover the ‘‘smoking gun’’ linking Iraq to WMD or terrorism resulted in widespread criticism of the decision to go to war and left the Bush administration scrambling for other grounds on which to denounce the Iraqi regime, such as its appalling human rights record. Both incidents evidence an operational code that requires counterterrorist operations to be based on dependable evidence. Unfortunately, international law contains no express evidentiary standard governing the quality of the information upon which States may resort to force in self-defense. However, a useful standard is that articulated by the United States in its notification to the Security Council that it was acting in self-defense when attacking Al Qaeda and the Taliban. In the letter of notification, Ambassador John Negroponte stated that ‘‘my Government has obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban

123

The White House, National Security Strategy of 2006, supra note 116, at 23.

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regime in Afghanistan, had a central role in the attacks.’’124 NATO Secretary General Lord Robertson used precisely the same term when announcing that the attack against the United States fell within the terms of Article V of the North Atlantic Treaty.125 In light of the near universal characterization of OEF as lawful, it appears that the international community accepts ‘‘clear and compelling’’ as an appropriate evidentiary standard in self-defense cases. Clear and compelling is a term borrowed in part from American jurisprudence, although, when assessing evidence, ‘‘clear and convincing’’ is more typically employed. Clear and convincing evidence is a level more probative of the issue at hand than ‘‘preponderance of the evidence,’’ which simply means that the evidence makes the matter more likely than not. It is, on the other hand, less probative than the ‘‘beyond a reasonable doubt’’ standard typically required for a guilty finding in a criminal case. Used in the context of justifying a use of force, clear and convincing evidence of a forthcoming armed attack is evidence that would convince a reasonable State to act defensively in same or similar circumstances. Reasonable States do not act precipitously, nor do they remain idle as indications that an attack is forthcoming become deafening. Since the United States proffered the phrase in a self-defense context, it is reasonable to impose such a standard upon it. Thus, if the 2006 NSS’ use of the term ‘‘uncertainty’’ is interpreted as alluding to the quality of evidence, that uncertainty may not rise to a level that would cause the basis for the action to be less than clear and compelling.

2.4 Conclusion In a sense, the 2006 National Security Strategy represents the maturation of counterterrorism strategy and law. The horrendous events of 9/11 shocked the international community into reconsidering the normative framework governing terrorism. Resultantly, the premise that terrorism was more than mere criminality, that it rises to the level of armed attack, has garnered wide acceptance. This acceptance is reflected in the fact that the most powerful country in the world has chosen to make counterterrorism the centerpiece of its national security strategy. Operation Enduring Freedom also fundamentally altered notions of the sanctions to which States that support terrorism are subject. An operational code that generally rejected the use of force against States for involvement falling below some degree of control shifted in the course of less than a month to one permitting the forcible ouster of a regime that had done little more than allow a terrorist group 124

Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/ 2001/946 (October 7, 2001). 125 Statement by NATO Secretary General Lord Robertson, NATO Headquarters (October 2, 2001), available at http://www.nato.int/docu/speech/2001/s011002a.htm.

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to freely use its territory. This shift is reflected brightly in the 2006 NSS’ refusal to distinguish between terrorists and the States that support or harbor them. The operational code has evolved in other ways responsive to the new context. For instance, imminency can no longer been seen in purely temporal terms; in the twenty-first century the issue is opportunity, not time. And territorial sovereignty has necessarily yielded a bit to the practical needs of self-defense. As the difficulty of combating a territory-less enemy became apparent, States which cannot or will not police their own territory must surrender a degree of their border’s legal impenetrability. Again, although not completely new, these issues were highlighted by the attacks of 9/11, with transformations in the operational code revealing themselves as the United States and its global partners responded to this and subsequent acts of transnational terrorism. They are all reflected in the NSS. But the Operation Iraqi Freedom interlude demonstrated that we were witnessing an evolution of the normative framework, not its dismantling. The United States and its allies, despite the fact that the Security Council itself had condemned Iraq for failing to comply with its obligations regarding terrorism, was incapable of making the case that the situation merited action in self-defense (or a Council use of force mandate). In the end, it resorted to a legal justification that, albeit appropriate as a matter of law, continues to mystify many. Moreover, the failure to produce the ‘‘smoking gun’’ and the negative impact it (wrongly) had on perceptions of the legality of the operation, demonstrate that even in cases of terrorism, States will be held to high standards. Bearing this in mind, the current normative vector of the law of counterterrorism appears sound.

Abbreviations NSS

National Security Strategy

OEF

Operation Enduring Freedom

OIF

Operation Iraqi Freedom

WMD

Weapons of mass destruction

References Baker SG (1994) Comparing the 1993 US airstrike on Iraq to the 1986 bombing of Libya: the new interpretation of Article 51, 24 GA J Int Comp L 99 Bennhold K (2006) Musharraf condemns US strikes in Pakistan, Int Herald TRlB, 27 January Broder J (1986) Israelis praise it while Arabs vow to avenge it, Chicago TRIB, April 16 Dinstein Y (2005) War, aggression, and self-defence 1 95 (4th edn Cambridge) Dworkin A (2002) The Yemen strike, November 14, available at http://www.crimesofwar.org/ onnews/news-yemen.html

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Gall C and Jehl D (2006) Strike aimed at Qaeda figure stirs more Pakistan protests, NY Times, 16 January Jennings RY (1938) The Caroline and McLeod cases, 32 Am J lnt L 82, 82 Lacey M (2000) Self-Defense or self-denial, the proliferation of weapons of mass destruction. 10 Ind Int Comp L Rev 293, 295 Meisler S (1993) UN reaction mild as US explains raid, LA Times, 28 June Murphy SD (1999) Contemporary practice of the United States relating to international law, 93 Am J Int L 161, 164–65 Murphy SD (2002) Contemporary practice of the United States relating to international law, 96 Am J Int L 237, 248 Pearson B (2001) PM commits to mutual defence, Australian Fin Rev, 15 September Reagan President R (1986) address to the nation (April 14, 1986), in dep’t state bull, June Reisman WM (1999) International legal responses to terrorism, 22 Hous J Int L 1: 33–34 Roberts A (2003) Law and the use of force in Iraq, survival, June Schmitt MN (1999) Computer network attack and use of force in international law: thoughts on a normative framework, 37 Colum J Transnat L 885 Schmitt MN (2002) Counter terrorism and the use of force in international law. 32 Israel YB Hum Rts 53 Schmitt MN (2004) The legality of operation Iraqi freedom under international law. 32 J Mil Ethics 82 Sciolino E (1986) Attack on Libya: the view from Capital Hill, NY Times, April 16 Taft IV WH and Buchwald TF (2003) Future implication of the Iraq conflict: preemption, Iraq, and international law, 97 Am J Int L 557, 557 White House statement (1986) in dep’t state bull, June Williams D (2001) Islamic group offers US mild rebuke, Washington Post, 11 October Wray R (2002) NY counts cost of 9/11, The guardian unlimited, 5 September, 2002, available at http://www.guardian.co.uk/september11/story/0.11209.786326.00.html

Part II

Conduct of Hostilities

Chapter 3

Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance

Abstract This chapter examines the international humanitarian law (IHL) principles of military necessity and humanity. It argues that the two principles undergird the entire body of IHL. Therefore, each individual IHL rule represents a delicate balance fashioned by States to accommodate both their legitimate need to be able to fight effectively on the battlefield and their desire to avoid unnecessary harm to combatants and the civilian population. However, the principles do not constitute norms which apply in addition to the existing rules, whether customary or conventional in nature. To interpret them in this manner would skew the balance upon which States have agreed.

Contents 3.1 Introduction....................................................................................................................... 3.2 Military Necessity and Humanity in IHL ....................................................................... 3.2.1 Historical Underpinnings: Military Necessity as Justification............................ 3.2.2 Modern Notions: Balancing Military Necessity and Humanity ......................... 3.2.3 Military Necessity and Humanity in the Lex Scripta ......................................... 3.3 Evolution of the Balance ................................................................................................. 3.3.1 Codification of IHL Prior to World War II ........................................................ 3.3.2 Codification of IHL Since World War II .......................................................... 3.3.3 State Apprehension ............................................................................................. 3.4 External Influences: Upsetting the Balance? ................................................................ 3.4.1 The Influence of International Tribunals........................................................... 3.4.2 Other Influences on the Balance........................................................................ 3.5 Conclusion ...................................................................................................................... References................................................................................................................................

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3.1 Introduction No principle is more central to international humanitarian law (IHL), nor more misunderstood, than that of military necessity. It has been proffered both to justify horrendous abuses during armed conflicts and to impose impractical and dangerous restrictions on those who fight. Contemporary conflicts, as well as ongoing efforts to clarify IHL’s application therein, have further muddied the waters. This chapter examines the principle of military necessity and its current trajectory. In IHL, the principle appears in two guises: justification for normative deviation, and as an element of the lex scripta. The first notion will be quickly dispatched, for the law surrounding military necessity as a justification for violating IHL is well-settled. With regard to the latter, military necessity appears as both a specific element and a general foundational principle. Although the catalogue of direct references to military necessity in IHL is slim, the principle pervades the entire body of law by undergirding individual rules. In this central role, military necessity exists in equipoise with the principle of humanity, which seeks to limit the suffering and destruction incident to warfare. This symbiotic relationship determines in which direction, and at what speed, IHL evolves. It also determines the manner of its application on the battlefield. The orderly development of treaty law by states over time allows for equilibrium in the legal system, since states must be responsive to both military and humanitarian interests. Yet, as this chapter will demonstrate, various external pressures have fueled a gradual shift in emphasis toward humanitarian considerations. Although the trend may represent one form of ‘‘progress,’’ it equally risks destabilizing the delicate balance that preserves the viability of IHL in a statecentric normative architecture.

3.2 Military Necessity and Humanity in IHL 3.2.1 Historical Underpinnings: Military Necessity as Justification The premise that military necessity can justify departure from the strict rules of international law finds its roots in the German nineteenth century doctrine of Kriegsraison geht vor Kriegsmanier (necessity in war overrules the manner of warfare). Prior to World War I, various German writers argued that extreme necessity could deprive the laws of war of their binding force.1 Specifically, this elevation of necessity over legal norms was justified when the sole means of

1

For a discussion of this period, see Oppenheim 1952.

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avoiding severe danger was to violate the law or when compliance with the law might jeopardize the conflict’s ultimate objectives. The concept of Kriegsraison never gained traction, however, its risks to the legal order being self-evident. For instance, writing in 1908, Percy Bordwell noted that ‘‘given a liberal interpretation it would soon usurp the place of the laws of war altogether.’’2 Elihu Root, then President of the American Society of International Law, similarly remarked at the organization’s 1921 meeting that ‘‘[e]ither the doctrine of kriegsraison must be abandoned definitely and finally, or there is an end of international law, and in its place will be left a world without law.’’3 War crimes trials occurring in the aftermath of the Second World War definitively put the argument to rest. In The Hostage Case, German generals argued that military necessity justified actions such as reprisal killings of civilians during occupation.4 The American Military Tribunal rejected the argument, noting that [m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money…. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war… but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces…. We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law.5

There is no basis whatsoever in contemporary international law or practice to suggest the contrary; Kriegsraison is plainly incompatible with the operation of IHL in the modern world.6 Nevertheless, the historical underpinnings of military necessity as a justification for divergence from the absolute protection of civilians and civilian objects during armed conflict are carried through and reflected in the entire body of IHL. Although carte blanche deviation from established legal norms based on military necessity is impermissible, the balancing of necessity and humanity pervades contemporary international law in both a general and a specific sense. 2

Bordwell 1908. Root 1921, p. 3; see also Fenwick 1965, p. 655 (claiming the doctrine would reduce ‘‘the entire body of the laws of war to a code of military convenience’’). 4 United States versus List (The Hostage Case), Case No. 7 (February 19, 1948), reprinted in 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 1230 (1950). 5 Id. at 1253–56. 6 On the doctrine of Kriegsraison, see Best 1983, pp. 172–79 (providing an excellent general discussion of Kriegsraison). For concise summaries of military necessity and humanity, see Dinstein 2004, pp. 16–20; Rogers 2004, pp. 3–7; Downey 1953; Dunbar 1952; McCoubrey 1991; O’Brien 1957. 3

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3.2.2 Modern Notions: Balancing Military Necessity and Humanity As the 1899 and 1907 Hague Regulations famously noted, ‘‘[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.’’7 Rather, IHL represents a carefully thought out balance between the principles of military necessity and humanity. Every one of its rules constitutes a dialectical compromise between these two opposing forces. This should be unsurprising, for only states have the capacity to make international law, either by treaty or through state practice maturing into customary law.8 International law thus reflects the goals of those states consenting to be bound by it. In the arena of conflict, states harbor two prevailing aims. The first is an ability to pursue and safeguard vital national interests. When crafting IHL, states therefore insist that legal norms not unduly restrict their freedom of action on the battlefield, such that national interests might be affected. The principle of military necessity constitutes the IHL mechanism for safeguarding this purpose. It is not, as sometimes asserted, a limitation on military operations.9 Instead, the principle recognizes the appropriateness of considering military factors in setting the rules of warfare. Legitimate states are equally obligated to ensure the well-being of their citizenry, for the provision of ‘‘public goods,’’ such as physical safety, underpins the social contract between a state and its people. The principle of humanity, which operates to protect the population (whether combatants or noncombatants) and its property, advances this imperative. In light of these often contradictory interests, states must make policy choices, in the form of treaties or practice, as to their most efficient accommodation.10 Of course, all policy decisions are contextual in the sense of being based on past, existing, or anticipated circumstances. When circumstances change, the perceived sufficiency of a particular balancing of military necessity and humanity may come

7

Convention Respecting the Laws and Customs of War on Land annex Article 22, October 18, 1907, 36 Stat. 2277, 207 Consol. T.S. 277 [hereinafter Hague IV]; Convention with Respect to the Laws and Customs of War on Land annex Article 22, July 29, 1899, 32 Stat. 1803, 26 Martens Nouveau Recueil (ser. 2) 949 [hereinafter Hague II]. The principle also appears in Additional Protocol I, albeit with the addition of ‘‘methods’’ of warfare. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts Article 35(1), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. Methods generally refer to tactics, whereas means refer to weapons. 8 Statute of the International Court of Justice Article 38, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993 [hereinafter ICJ Statute]. 9 I have changed my view on this issue. For my earlier approach, see Schmitt 1997, p. 54. This view was also advanced in Dep’t of the Air Force, Air Force Pamphlet 110-31: International Law—The Conduct Of Armed Conflict and Air Operations (1976), which was rescinded in 2006. 10 On the making of such choices, see McDougal and Feliciano 1961, pp. 521–30; McDougal 1984.

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into question. In response, states reject, revise, or supplement current IHL or craft new norms. Interpretation and application of existing law may also echo the new circumstances. This balance between military necessity and humanity pervades IHL in both a general and specific sense. The 1868 St. Petersburg Declaration, for example, explicitly recognized the need to strike such a balance, seeking to ‘‘fix[] the technical limits at which the necessities of war ought to yield to the requirements of humanity.’’11 Elsewhere, balancing appears as a more general, foundational principle of IHL. The 1907 Hague Convention IV, which the International Court of Justice (ICJ) has recognized as having matured into customary law,12 provides one such example. According to its preamble, the instrument was ‘‘inspired by the desire to diminish the evils of war, as far as military requirements permit…’’13 Inclusion of the celebrated ‘‘Martens Clause’’ in Hague Convention IV further confirms that the balancing of military aims by humanitarian considerations was intended to serve as a general notion infusing the law: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.14

An analogous provision in the 1977 Additional Protocol I,15 as well as citation of the clause by the ICJ,16 affirm its continuing applicability. The Martens Clause demonstrates that IHL is excluded from any positivist assertion to the effect that all which is not forbidden in international law is permitted.17 As acknowledged by the ICJ in Corfu Channel, ‘‘elementary considerations of humanity’’ permeate international law.18 Consequently, the mere absence 11

Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight pmbl., November 29, 1868, 18 Martens Nouveau Recueil (ser. 1) 474 [hereinafter 1868 St. Petersburg Declaration]. 12 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 172 (July 9); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8). The rules were also found to be customary by the Nuremberg Tribunal. 1 Trial of the Major War Criminals Before the International Military Tribunal 254 (1947) [hereinafter IMT Nuremburg]. 13 Hague IV, supra note 7, pmbl. para 5; see also Hague II, supra note 7, pmbl. para 6. 14 Hague IV, supra note 7, pmbl. para 8. 15 See Additional Protocol I, supra note 7, Article 1(2). 16 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. at 257. 17 Arguing against presumed restrictions on state independence in The Case of the S.S. ‘‘Lotus,’’ the Permanent Court of International Justice famously asserted that ‘‘[t]he rules of law binding upon States… emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.’’ S.S. ‘‘Lotus’’ (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 14 (September 7). 18 Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (April 9).

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of an express IHL rule on point does not necessarily justify an action on the basis of military necessity; actions in warfare must equally reflect respect for humanity. Nevertheless, by its own terms, the Martens Clause applies only when the lex scripta is silent. Extant treaty law therefore reflects an agreed-upon balance between military necessity and humanity, such that neither independently justifies departure from its provisions, unless otherwise specifically provided for in the law.19 As only states make law, they alone can adjust the consensus balance.

3.2.3 Military Necessity and Humanity in the Lex Scripta The principle of military necessity surfaces as such only sparingly in the lex scripta. It first appeared prominently in the 1863 Leiber Code,20 which bound Union forces during the Civil War. The Code’s three articles on military necessity provided the touchstone for subsequent development of the principle: Article 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. Article 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war…. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. Article 16. Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge…. [A]nd, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.21

Note how the Lieber Code’s considerations of humanity temper each mention of military necessity. Article 14, for instance, envisages whatever destruction is necessary to achieve the overall war aims, but only to the extent the actions comport with established law of war norms. Similarly, although Article 15 foresees the inevitability of harm to persons other than combatants, it limits such harm to that which is incidental and avoidable. Article 16 bounds the assertion that all

19

A draft of the Department of Defense’s forthcoming Law of War Manual states: ‘‘Where an express prohibition has been stated, neither military necessity nor any other rationale of necessity may override that prohibition. Military necessity was weighed by nations as each express prohibition was promulgated, and again at the time each State Party ratified or acceded to each treaty.’’ Dep’t of Def., Law of War Manual (forthcoming 2010) (on file with author). 20 Lieber 1863, reprinted in Schindler and Toman 2004. Note that the Lieber Code was a national regulation, not a treaty. Nevertheless, it provided the foundation for much subsequent international humanitarian law. For more information on the Lieber Code and military necessity, see Carnahan 1998. 21 Id. Articles 14–16 (emphasis added).

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attacks on combatants qualify as necessary with the stipulation that they not be cruel. Conversely, IHL sometimes contemplates deviation from a rule grounded in humanitarianism on the basis of military necessity. Hague Convention IV, for example, bars the destruction or seizure of enemy property unless ‘‘imperatively demanded by the necessities of war.’’22 The 1949 Fourth Geneva Convention prohibits occupying powers from destroying certain property ‘‘except where such destruction is rendered absolutely necessary by military operations.’’23 Protections secured for cultural property in the 1954 Hague Cultural Property Convention may be narrowed ‘‘in cases where military necessity imperatively requires such a waiver.’’24 The 1977 Additional Protocol I permits the following actions in the presence of ‘‘imperative military necessity’’: derogation from the ban on ‘‘scorched earth’’ tactics within territory under control of a Party25; use of enemy ‘‘matériel and buildings of military units permanently assigned to civil defence organizations’’26; and restrictions on the activities of civil defense and relief personnel.27 These examples illustrate that even when mentioned explicitly in IHL instruments, military necessity always operates in the shadow of humanitarian concerns. Implicit balancing is far more pervasive. Most significantly, military necessity restricts the principle of distinction, characterized as one of two ‘‘cardinal’’ principles of IHL by the ICJ in Nuclear Weapons.28 This customary law principle, reflected in Article 48 of Additional Protocol I, requires parties to ‘‘at all times distinguish between the civilian population and combatants and between civilian

22

Hague IV, supra note 7, annex Article 23(g). Geneva Convention Relative to the Protection of Civilian Persons in Time of War Article 53, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. By the convention, extensive destruction or seizure of property is a grave breach when ‘‘not justified by military necessity and carried out unlawfully and wantonly.’’ Id. Article 147. It further permits limits on relief for internees based on military necessity, albeit only under strict conditions. Id. Article 108; see also Id. Article 143 (regarding visits by representatives of Protecting Powers); Geneva Convention Relative to the Treatment of Prisoners of War Article 126, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III] (regarding visits to prisoners of war). 24 Convention for the Protection of Cultural Property in the Event of Armed Conflict Article 4, May 14, 1954, S. Treaty Doc. No. 106-1 (1999), 249 U.N.T.S. 240 [hereinafter CPCP]; see also id. Article 11; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict Article 6, March 26, 1999, 2253 U.N.T.S. 212 [hereinafter Second Protocol to CPCP]. 25 Additional Protocol I, supra note 7, Article 54(5). 26 Id. Article 67(4). 27 Id. Articles 62(1), 71(3). 28 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8). 23

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objects and military objectives.’’29 Articles 51 and 52 operationalize distinction in the context of military necessity. Thus, while Article 51 prohibits attacks on civilians, those who participate in the conflict lose said protection for so long as they ‘‘take a direct part in hostilities.’’30 Analogously, Article 52 prohibits attacks on objects that are not ‘‘military objectives,’’ but acknowledges that civilian objects can become military objectives when, ‘‘by their nature, location, purpose or use,’’ such objects ‘‘make an effective contribution to military action’’ and their ‘‘total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’’31 Necessity also appears as a limiting factor in the second cardinal principle, unnecessary suffering, which implicitly recognizes the lawful nature of weapons that cause militarily necessary suffering.32 In the aforementioned examples, the bounding, whether explicit or implicit, of a general rule on the basis of military necessity is overt. But analysis of most IHL rules, especially those governing the conduct of hostilities, reveals consistent sensitivity to the balance between military necessity and humanity. For instance, an attacker may not treat multiple military objectives in an area containing a concentration of civilians as a single military objective (as with area or carpet bombing) when, because the targets are ‘‘separated and distinct,’’ it is feasible to attack them individually.33 As lawful targets, their destruction is militarily necessary, but the humanitarian aim of limiting harm to the civilian population mandates a tactical alternative as a matter of law. Requiring particular tactical choices is a frequent means of preserving humanity during the conduct of hostilities. Attackers may not target a military objective if other viable targets exist that offer ‘‘a similar military advantage’’ with less

29

Additional Protocol I, supra note 7, Article 48; see also Dep’t of the Navy, the Commander’s Handbook on the Law of Naval Operations Sect. 8.1 (2007). Available at http://tinyurl.com/ yerq4lo [hereinafter Commander’s Handbook] (‘‘The law of targeting… requires that all reasonable precautions must be taken to ensure that only military objectives are targeted so that noncombatants, civilians, and civilian objects are spared as much as possible from the ravages of war.’’); Henkaerts and Doswald-Beck 2005, pp. 3–8, 25–26. The Commander’s Handbook is especially relevant with regard to the existence of customary law because the United States is not a party to Additional Protocol I. Some of the Handbook’s provisions, however, are based on policy choices rather than customary law. 30 Additional Protocol I, supra note 7, Article 51(3). These rules reflect customary international law. See Commander’s Handbook, supra note 29, Sect. 8.3; Henkaerts and Doswald-Beck 2005, at 3–8. 31 Additional Protocol I, supra note 7, Article 52(2). This rule also reflects customary international law. See Commander’s Handbook, supra note 29, Sect. 8.3; Henkaerts and Doswald-Beck 2005, at 25–26. 32 See Additional Protocol I, supra note 7, Article 35(2). This rule reflects customary international law. See Commander’s Handbook, supra note 29, Sect. 9.1; Henkaerts and Doswald-Beck 2005, at 244–250. 33 Additional Protocol I, supra note 7, Article 51(5)(a).

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‘‘danger to civilian lives and to civilian objects.’’34 They must also choose among tactics and weapons (methods and means) with an eye to ‘‘avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.’’35 The existence of choice depends on the ‘‘feasibility’’ of the options, thereby demonstrating that ‘‘precautions in attack’’ constitute a negotiated compromise between military and humanitarian factors.36 The most conspicuous balancing appears in the principle of proportionality. A customary principle of law codified in Article 51 of Additional Protocol I, proportionality forbids an attack as indiscriminate if it may ‘‘be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’’37 The give and take of military necessity and humanity is apparent in the relative nature of the term ‘‘excessive.’’38 Even minor collateral damage might bar an otherwise lawful attack if the military advantage that accrues to the attacker is slight, whereas a great deal of collateral damage might be justified if the corresponding military advantage is considerable. At times the express or inherent balance between military necessity and humanity may appear illogical, such that one or the other ought to be invoked to rebalance an existing rule. But any such rebalancing would be without justification 34

Id. Article 57(3). Id. Article 57(2)(a)(ii). 36 See id. Article 57(2)(a). The term ‘‘feasible precautions’’ is generally understood as ‘‘those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.’’ Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) Article 1(5), October 10, 1980, S. Treaty Doc. No. 105-1 (1997), 1342 U.N.T.S. 171; see also Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Amended Protocol II) Article 3(10), May 3, 1996, S. Treaty Doc. No. 105-1 (1997). A number of countries specifically adopted this standard as their interpretation of the term upon ratifying Additional Protocol I. See, e.g., Letter from Christopher Hulse, Ambassador from the UK to Switz., to the Swiss Gov’t (January 28, 1998), http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument [hereinafter U.K. Reservations] (listing the United Kingdom’s reservations and declarations to Additional Protocol I, and explaining that ‘‘[t]he United Kingdom understands the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations’’). 37 Additional Protocol I, supra note 7, Article 51(5)(b); see also Rome Statute of the International Criminal Court Article 8(2)(b)(iv), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]; Additional Protocol I, supra note 7, Article 57(2); Commander’s Handbook, supra note 29, Sect. 8.3, Henkaerts and Doswald-Beck 2005, at 46–77. 38 Note that the nonbinding ICRC commentary to the provision suggests that ‘‘[t]he Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.’’ Sandoz et al. 1987. No basis exists in practice or law for this statement, which would represent a disproportionate emphasis on the humanity aspect of the balance in that it applies regardless of the military advantage gained through an attack. Its rejection is exemplified in the ICC Statute provision on proportionality, which adds the adjective ‘‘clearly’’ to the term ‘‘excessive,’’ lest the bar be set too low. ICC Statute, supra note 37, Article 8(2)(b)(iv). 35

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insofar as the new balance deviates from that which states have agreed upon. The paradigmatic example involves treatment of an enemy soldier captured by a Special Forces unit behind enemy lines. Although the unit cannot complete its mission with the prisoner in tow, it realizes that the soldier will raise the alarm if released. The logical answer is to kill him; after all, he is the enemy and but for capture would have been subject to deadly attack on sight. But IHL characterizes captured enemy forces as hors de combat and safeguards them from attack, which as defined in IHL encompasses any act of violence against an adversary.39 Thus, the team may not harm the captured soldier; they must either abort their mission and return to base with the prisoner or secure him in a fashion that permits him to eventually escape unharmed. Irrational as it may seem, the rule reflects a de jure balance between military necessity and humanity. No adjustment is permissible.

3.3 Evolution of the Balance International humanitarian law necessarily evolves to reflect the nature of conflict and the values of its participants. Since the nineteenth century, it has moved steadily in the direction of humanity and away from that of military necessity. Even the moniker of the law has shifted over time. In the first half of the twentieth century, it was known as the ‘‘law of war.’’ The 1949 Geneva Conventions prompted a change to the ‘‘law of armed conflict,’’ reflecting those instruments’ use of the term ‘‘armed conflict’’ to emphasize that application of their humanitarian prescriptions did not depend on either a declaration of war or recognition by the parties of a state of war. More recently, this body of law has become known as ‘‘international humanitarian law,’’ in great part through the efforts of the International Committee of the Red Cross (ICRC). Despite its recognition by the ICJ,40 the label has the marked disadvantage of masking the role military necessity plays in the law governing armed conflict. Nevertheless, it accurately reflects the trend toward according greater weight to the humanitarian features of the law.

39

Additional Protocol I, supra note 7, Article 49. See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8). The label also appears in contemporary treaty law. See, e.g., Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction pmbl., September 18, 1997, 36 I.L.M. 1507; Statute of the International Tribunal for Rwanda, S.C. Res. 955 annex, Article 1, U.N. Doc. S/RES/955 (November 8, 1994); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704 annex (May 3, 1993), http://www1.umn.edu/humanrts/icty/statute.html [hereinafter ICTY Statute].

40

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3.3.1 Codification of IHL Prior to World War II The increasing weight accorded humanity is especially evident in treaty law. As multinational codification of the law governing conflict began, its emphasis was on the state and its agents, not protection of the civilian population. The 1856 Paris Declaration on Maritime Law dealt with privateering, neutrality, and blockades— issues grounded in the rights and interests of states.41 The 1864 Geneva Convention on the wounded and sick and the 1868 St. Petersburg Declaration on explosive projectiles were both aimed solely at enhancing protection of the armed forces.42 The 1899 and 1907 Hague Peace Conferences produced an array of conventions and declarations, most of which addressed either matters relevant to the activities of states, such as the opening of hostilities, neutrality, and merchant shipping, or the protection of combatants, such as limitations on certain weapons.43 While the 1899 Convention II on the Laws and Customs of War on Land and the 1907 Hague Convention IV on the same subject envisaged protection of the civilian population, the catalogue of said provisions was slim, dealing primarily with belligerent occupation.44 Attempts to craft treaties extending additional protection to civilians faltered repeatedly.45 Throughout this period, military necessity reigned supreme, while humanity served primarily to protect the armed forces.

41

Declaration of Paris Respecting Maritime Law, April 16, 1856, reprinted in 1 Supplement AM. J. INT’L L. 89 (1907). 42 1868 St. Petersburg Declaration, supra note 11; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, August 22, 1864, 22 Stat. 940, 129 Consol. T.S. 361. 43 Final Act of the International Peace Conference, July 29, 1899, reprinted in 1 Supplement Am J Int L 103 (1907); Final Act of the Second Peace Conference, October 18, 1907. http://www.icrc.org/ihl.nsf/FULL/185?OpenDocument. 44 See Hague II, supra note 7; Hague IV, supra note 7. The annexed regulations to Hague IV also dealt with attacking populated areas; warnings; protection of buildings dedicated to religion, art, science, or charitable purposes, historic monuments, and medical facilities; and pillage. Hague IV, supra note 7, annex Articles 24–27. Other conventions adopted during the period preceding the close of World War II likewise focused humanitarian attention primarily on combatants. See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 6, 1906, 35 Stat. 1885, 22 Consol. T.S. 144; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65; Convention Relative to the Treatment of Prisoners of War Article 82, July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 343; Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field Article 25, July 27, 1929, 47 Stat. 2074, 118 L.N.T.S. 303. 45 This includes the 1923 Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. http://www.icrc.org/ihl.nsf/FULL/275?OpenDocument; the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality Who Are on Territory Belonging to or Occupied by a Belligerent. http://www.icrc.org/ihl.nsf/FULL/320? OpenDocument; and the 1938 Draft Convention for the Protection of Civilian Populations Against New Engines of War. http://www.icrc.org/ihl.nsf/FULL/345?OpenDocument.

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3.3.2 Codification of IHL Since World War II The carnage of the Second World War stimulated a major shift toward humanitarian protection of the civilian population. In 1945, 19 states ratified the Charter of the International Military Tribunal, which provided for jurisdiction over war crimes against civilians and crimes against humanity.46 Of particular note, the tribunal embraced the premise that the 1907 Hague Regulations, with their limited protection of civilians and their property, had become ‘‘declaratory of the laws and customs of war.’’47 The Charter also codified the notion of ‘‘crimes against humanity,’’ which arguably represented a new norm, especially in the sense that it applied irrespective of a state of war and to the victimization by a state of its own citizens. Codification proceeded even as the trials were underway. In 1948 the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which protected ‘‘national, ethnical, racial or religious’’ groups and applied in ‘‘time of peace or in time of war.’’48 The following year a diplomatic conference adopted the four Geneva Conventions. The first three dealt with issues primarily affecting combatants: wounded and sick on land49; wounded, sick, and shipwrecked at sea50; and prisoners of war.51 The fourth, however, dealt exclusively with the protection of civilians, thereby marking a milestone in IHL. 46

Charter of the International Military Tribunal at Nuremburg Article 6(b)–(c), August 8, 1945, 59 Stat. 1546, 82 U.N.T.S. 279 [hereinafter Nuremburg Charter]. The Charter defined the offenses thusly: (b)

(c)

War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Id. The Charter principles were unanimously affirmed by the UN General Assembly in 1946. G.A. Res. 95 (I), at 188, U.N. Doc. A/236 (December 11, 1946). 47 1 IMT NUREMBERG, supra note 12, at 254. The finding was necessary because of the general participation clause in Article 2: ‘‘The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention.’’ Hague IV, supra note 7, Article 2. 48 Convention on the Prevention and Punishment of the Crime of Genocide Articles 1–2, December 9, 1948, S Exec Doc O, 81-1 (1949), 78 U.N.T.S. 277 [hereinafter Genocide Convention]. 49 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31. 50 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85. 51 GC III, supra note 23.

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The longest of the four Conventions, it expressly supplemented the 1899 and 1907 Hague Regulations.52 The postwar period also saw the adoption of a number of treaties providing protection for specific individuals and objects. In 1954, the Hague Cultural Property Convention and its First Protocol were adopted.53 Modification of the environment during wartime was banned in 197654; a Second Protocol to the Cultural Property Convention was adopted in 199955; and a 2000 Optional Protocol sought to enhance the protection of children during armed conflict.56 The law of weaponry, which had heretofore been designed primarily to alleviate the suffering of combatants, likewise reflected the emphasis on humanitarian concerns. Protocol III of the 1980 Convention on Conventional Weapons (CCW) placed limits on the use of incendiary weapons against or in the vicinity of civilians and in forested areas.57 As civilians were often the unintended victims of booby traps and antipersonnel mines, CCW Protocol II (1980) and Amended Protocol II (1996) imposed restrictions on their use in situations endangering the civilian population.58 The 1997 Ottawa Convention banned the use of such mines altogether by states party thereto.59 A fifth Protocol to the CCW, adopted in 2003, created a system to deal with explosive remnants of war.60 Five years later, a diplomatic conference in Dublin produced the Convention on Cluster Munitions in order to deal with the problem of failed bomblets, which, like explosive remnants and land mines, pose a persistent risk to civilians.61 The seminal event in the treaty-based shift came with adoption of the 1977 Additional Protocols to the 1949 Geneva Conventions. In the eyes of many members of the international community, conflicts since the Second World War had evolved in a direction that merited a corresponding evolution in the law. Two factors were of particular importance: guerrilla warfare (especially during national liberation struggles) and the spread of non-international armed conflicts. Both

52

GC IV, supra note 23, Article 154. See CPCP, supra note 24; Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 358. Additional Protocol I also provides for the protection of cultural property. Additional Protocol I, supra note 7, Article 53. 54 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, Article I(1), 31 U.S.T. 333, 1108 U.N.T.S. 152. 55 Second Protocol to CPCP, supra note 24. 56 Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, S. Treaty Doc. No. 106-37 (2000), 39 I.L.M. 1285. 57 Protocol III, supra note 36, Article 2. 58 Amended Protocol II, supra note 36. 59 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on Their Destruction, September 18, 1997, 36 I.L.M. 1507 (1997). 60 Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention), November 28, 2003, 45 I.L.M. 1348 (2006). 61 Convention on Cluster Munitions, December 3, 2008, 48 I.L.M. 357 (2008). 53

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phenomena placed civilians and their property at particular risk. In response, Additional Protocols I and II were adopted—the former governing international armed conflicts, the latter focusing on intranational hostilities. Additional Protocol I was unique in its joinder of ‘‘Hague’’ and ‘‘Geneva’’ law.62 Moreover, the diplomatic conference that drafted the two Protocols amounted to the first comprehensive endeavor to carefully assess where the balance between military necessity and humanity lay, especially in the context of the ‘‘conduct of hostilities.’’ In particular, it elaborated the customary international law principle of distinction, including its key components of indiscriminate attack, proportionality, and precautions in attack, thereby signaling a new sensitivity to the humanity component of IHL.63 Equally important was the adoption of Additional Protocol II, the first treaty to exclusively address non-international armed conflict.64 Previously, such conflicts were principally governed by Common Article 3 of the 1949 Geneva Conventions, a provision extending only the most basic of protections to ‘‘persons taking no active part in the hostilities.’’65 By contrast, Additional Protocol II contained articles addressing the protection of children, detainees, internees, the wounded, sick, and shipwrecked, and set forth restrictions on prosecution and punishment. Perhaps most importantly, it established a protective regime for the civilian population, including prohibitions related to targeting, terrorizing, or starving civilians; dams, dykes, and nuclear electrical generating stations; cultural and religious objects and places of worship; the forced movement of civilians; and relief agencies and humanitarian assistance.66 The revolutionary scope of these protections, albeit less comprehensive than those contained in Additional Protocol I, must be understood in context. Previous IHL instruments represented negotiated ‘‘rules of the game’’ for warfare between states. To the extent that a rule protected the enemy’s combatants or the civilian population, it provided corresponding protection to one’s own. Accommodation of military necessity to humanitarian concerns theoretically affected all parties to a conflict equally.

62

This is with respect to norms addressing the conduct of hostilities and protections for persons and objects respectively. 63 See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable In Armed Conflicts (1978). 64 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Additional Protocol II]. 65 The text of Common Article 3, which also extended protection to the wounded and sick, is identical in all four of the 1949 Geneva Conventions. See supra notes 23, 49–50. The 1949 Genocide Convention applied to non-international armed conflict in certain circumstances (Genocide Convention, supra note 48, Article 1) as did the 1954 Cultural Property Convention (CPCP, supra note 24, Article 19). 66 Additional Protocol II, supra note 64, Articles 4–8, 13–18.

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By contrast, in non-international armed conflict the ‘‘enemy’’ is by definition acting unlawfully under domestic law irrespective of any treaty. Additional Protocol II therefore added little to the practical prescriptive regime.67 Moreover, the reciprocity inherent in treaties governing international armed conflict is nonexistent in the context of intrastate conflict because the domestic ‘‘rebels’’ are not party to relevant international instruments. Consequently, Additional Protocol II was, for states party thereto, a self-imposed limit on military necessity in the name of humanity. Their adoption of Additional Protocol II absent the reciprocity motivation further illustrates the extent to which the necessity-humanity dynamic had been revolutionized in the years following the Second World War. Despite the altered balance symbolized by Additional Protocol II, President Reagan submitted the instrument to the Senate in 1987 for advice and consent.68 In his letter of transmittal, the President opined that the agreement was, with certain exceptions, a positive step toward the goal of ‘‘giving the greatest possible protection to the victims of [non-international] conflicts, consistent with legitimate military requirements.’’69 The Legal Adviser to the State Department characterized the instrument’s terms as ‘‘no more than a restatement of the rules of conduct with which United States military forces would almost certainly comply as a matter of national policy, constitutional and legal protections, and common decency.’’70 In other words, the United States was willing to accept Additional Protocol II because it reflected established practice on the battlefield.

3.3.3 State Apprehension In the face of postwar codification, various states displayed apprehension as to the military necessity-humanity balance that had been struck in a number of treaties, most notably Additional Protocol I. First among these was the United States, which believed that ‘‘the Protocol suffers from fundamental shortcomings that cannot be remedied through reservations or understandings,’’ even though ‘‘certain provisions of Protocol I reflect customary international law, and others appear to

67

It is reasonable to assume that states would be unlikely to defer to international prosecution of rebels who could be tried instead in domestic courts. That being said, international law prohibitions would nonetheless serve further to ostracize those who engage in such acts. 68 Ronald Reagan, Letter of Transmittal to the U.S. Senate (January 29, 1987), reprinted in 81 Am J Int L 910 (1987). Additional Protocol II is still awaiting ratification, although no administration since that of President Reagan has publically expressed fundamental concerns about its provisions. 69 Id. at 910. President Reagan identified prohibitions on mass murders falling short of genocide and the deliberate killing of noncombatants as particularly significant concerns. Id. at 910–11. 70 Sofaer 1987, pp. 461–462.

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be positive, new developments.’’71 President Reagan made exactly this point in his letter of transmittal. Characterizing the agreement as ‘‘fundamentally and irreconcilably flawed,’’ he announced that ‘‘we cannot allow other nations of the world, however numerous, to impose upon us and our allies and friends an unacceptable and thoroughly distasteful price for joining a convention drawn to advance the laws of war.’’72 Military and policy considerations loomed large in the rejection. The United States was concerned that Article 1(4), which extended coverage to ‘‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination,’’ would place rebel groups on an equal footing with the armed forces by affording them the more comprehensive protections of the law of international armed conflict, even though their actions demonstrated a disdain for law generally.73 Similarly, the United States concluded that Article 44(3) denuded the requirement for combatants to distinguish themselves from civilians by providing that in ‘‘‘situations… where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself… he shall retain his status as a combatant’ [including prisoner of war status]’’ so long as he openly carried weapons during the ‘‘military deployment’’ preceding an engagement and during the engagement itself.74 Aside from the fact that an inability to distinguish fighters from civilians heightens the risk to the latter, the United States worried that by wearing civilian clothes and concealing their weapons, ‘‘terrorist[s] could… hide among civilians until just before an attack.’’75 This would seriously impair a state’s ability to identify and target potential enemy combatants. An assessment conducted by the US military judged the treaty ‘‘to be too ambiguous and complicated to use as a practical guide for military operations.’’76

71

Id. at 463, 471. Examples of positive new developments included certain protections for medical aircraft and the missing and dead. On the many provisions supported by the United States, see Matheson 1987, pp. 422–429. At the time he wrote the piece, Professor Matheson was serving as the State Department’s Deputy Legal Adviser. 72 Letter of Transmittal, supra note 68, at 911. Among the reasons proffered by the president for US opposition were (1) the instrument’s characterization of ‘‘wars of national liberation’’ as international armed conflict rather than non-international armed conflict (thereby appearing to imbue them with a greater sense of legitimacy); (2) the grant of combatant status to irregulars even if they did not comply with the traditional requirements for such status; and (3) the fact that the ‘‘Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.’’ Id. 73 Sofaer 1987, at 464. 74 Id. at 466 (quoting Additional Protocol I, supra note 7, Article 44(3)). 75 Id. at 467. 76 Id. at 468. For example, it failed to account for modern integrated power grids since an attacker would have difficulty determining the destination—civilian or military—of electricity from a particular power plant. The balancing seemed to be taking place without a complete grasp of the consequences for contemporary warfare.

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Article 56, for example, proscribed attacks against dams, dykes, and nuclear electrical generating stations even if they were proportionate and even if sufficient precautions were taken prior to launch. For the United States, the rule not only appeared to give excessive weight to humanity, but also seemed unnecessary in light of the reasoned balancing implicit in existing norms of proportionality and precaution.77 The United States was not alone in its uneasiness. The United Kingdom waited two decades before becoming a party to Additional Protocol I, making sixteen substantive ‘‘statements’’ at the time of ratification.78 The statements evidenced concern that the instrument required interpretation with an eye toward military realities. Virtually all of the statements preserved aspects of military practicality, whether at the tactical, operational, or strategic level. Thus, while the United Kingdom took a different tact than the United States, its motivation was identical: ensuring that the treaty not skew the sensible balance between military necessity and humanity.79 The position of the United States regarding certain other IHL instruments also displays sensitivity to ensuring that military necessity not be unduly sacrificed on

77

The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions 1987, 436. 78 See UK Reservations, supra note 36. Inter alia, the statements provided that the Protocol did not apply to nuclear weapons; clarified the term ‘‘feasible’’; emphasized that ‘‘military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach their decisions on the basis of their assessment of the information from all sources which is [sic] reasonably available to them at the relevant time’’; noted that the assessment of damage to the environment ‘‘is to be assessed objectively on the basis of the information available at the time’’; accepted the Article 44(3) provisions only as to occupied territory or Article 1(4) situations; stated that the presumption of civilian status in the case of doubt did not ‘‘override[] a commander’s duty to protect the safety of troops under his command or to preserve his military situation’’; explained that the term ‘‘military advantage’’ in the proportionality principle ‘‘is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack’’; cautioned that in certain circumstances areas of land could qualify as military objectives; pointed out that cultural objects and places of worship lose their protection if used for military purposes; noted that destruction of items necessary for civilian sustenance is only prohibited when such denial was the intended purpose; allowed for reprisals in certain circumstance involving enemy violation of the law; refused to grant absolute protection to dams, dykes, and electrical generating stations, although recognized that such attacks required ‘‘authorisation at a high level of command’’; and indicated that the obligation to cancel an attack if it became apparent that the target was not a military objective or if the attack would violate proportionality was applicable only to ‘‘those who have the authority and practical possibility to cancel or suspend the attack.’’ Id. 79 The United States is still not a party to Additional Protocol I.

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the altar of humanitarianism.80 Its stance regarding antipersonnel mines exemplifies such concern. The United States is a party to the 1980 Protocol II and the 1996 Amended Protocol II of the CCW. Designed to protect the civilian population from unintended exposure to dangerous explosives, these instruments limit particular uses of antipersonnel mines, impose technical requirements such as selfdeactivation, and mandate cautious deployment of such devices. In 1997, the Ottawa Convention took matters further by prohibiting the use of antipersonnel mines altogether. The United States, however, saw continued military value in their use, such as establishing defensive perimeters and channelizing enemy forces into ‘‘kill zones.’’ Furthermore, it was believed that the risk to civilians could be sufficiently mitigated through use restrictions and technology such as command-detonation and deactivation capacity.81 President Bill Clinton accordingly declared, ‘‘[T]here is a line that I simply cannot cross, and that line is the safety and security of our men and women in uniform.’’82 The United States expressed concern about its ability to effectively defend South Korea, where vast fields of land mines along the border with North Korea served as an effective barrier against invasion. Until such concerns could be addressed, the United States was unwilling to categorically halt its use of persistent antipersonnel mines. In 2004, President George W. Bush issued a revised US landmine policy suggesting that certain limitations beyond those contained in the CCW Protocols were acceptable as a matter of policy.83 These included the removal of nondetectable mines from its inventory, destruction of persistent landmines not required for the defense of South Korea, and a prohibition on the use of all persistent landmines after 2010. The Bush policy exemplified the need to gauge the military necessity-humanity balance contextually and temporally. A contextual approach to the necessity-humanity balance was likewise apparent in the US position regarding the 1954 Hague Cultural Property Convention, ratified in 2009.84 Experience in conflicts such as Operation Desert Storm had demonstrated that earlier concerns about the Convention’s weighing of military needs against the protection of cultural property had been ill-founded. As explained by the Defense Department’s Deputy General Counsel in a 2008 statement to the Senate,

80

It is on this general basis, as well as for other narrower reasons, that the United States elected not to become party to the Ottawa Convention, the Dublin Cluster Munitions Convention, and the Statute of the International Criminal Court. In each of these cases, the United States took the position that the instrument in question paid insufficient heed to the realities of armed conflict. Note that the Obama administration is reviewing the U.S. position regarding a number of international humanitarian law treaties. 81 Commander’s Handbook, supra note 29, Sect. 9.3. 82 Clinton 1997. 83 Department of State, US Landmine Policy, http://www.state.gov/t/pm/wra/c11735.htm (last visited April 28, 2010); see also Commander’s Handbook, supra note 29, Sect. 9.3. 84 See CPCP, supra note 24.

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The Convention does not prevent military commanders from doing what is necessary to accomplish their missions. Legitimate military actions may be taken even if collateral damage is caused to cultural property. Protection from direct attack may be lost if a cultural object is put to military use. The Department of Defense has carefully studied the convention and its impact on military practice and operations. The Department believes the convention to be fully consistent with good military doctrine and practice as conducted by US forces.85

Similarly, the United States ratified the CCW Protocol III on incendiary weapons in 2009, after nearly three decades of nonparty status.86 In ratifying the Protocol, the United States explicitly reserved the right to use such weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, in-jury to civilians and damage to civilian objects.87

This reservation reflects the symbiotic nature of military necessity and humanity. Consider a military objective in a concentration of civilians that would release chemicals harmful to the civilian population if attacked with regular explosive bombs. For the sake of analysis, assume that despite the expected incidental harm to civilians, the anticipated military advantage is great enough to comply with the proportionality principle. However, if incendiary weapons are employed, the resulting fire will consume the chemicals, thereby lessening the civilian impact and keeping the area accessible to ground forces. In this scenario, the use of incendiary weapons would serve both humanitarian and military ends: hence, the US reservation.

3.4 External Influences: Upsetting the Balance? As illustrated, the past century and a half has witnessed an orderly and acceptable evolution of the military necessity-humanity balance through codification. Although not all states agree on the suitability of the balancing set forth in the various IHL instruments, they remain free to opt out of legal regimes that they believe have inappropriately tilted the law in one direction or the other. Since only states make international law, the risk of becoming bound by laws (or legal interpretations) to which they do not consent, either de jure or de facto, has generally remained slight. In the past two decades, however, this state-centric 85

S. Exec. Rep. No. 110-22, at 29 (2008). http://www.fas.org/irp/congress/2008_rpt/protocols. pdf. 86 See Protocol III, supra note 36. 87 U.S. Consent to be Bound by Protocol III (with reservation and understanding) (January 21, 2009), Transmittal by U.N. Secretary-General, at 1, U.N. Doc. C.N.75.2009.TREATIES-1 (February 5, 2009). http://treaties.un.org/doc/Publication/CN/2009/CN.75.2009-Eng.pdf.

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process has been subjected to a variety of external influences.88 Such influences risk depriving states of their monopoly over determining the appropriate balance for themselves. This development is significant because these outside influences do not share the states’ incentive to find compromise between the principles.

3.4.1 The Influence of International Tribunals In international law, judicial decisions are not, strictly speaking, a source of law. Rather, they are ‘‘subsidiary means for the determination of rules of law.’’89 Like academic writings, judicial decisions serve as persuasive evidence of the state of the law, but are not dispositive in this regard; they bind only the parties before the tribunal.90 Indeed, international courts such as the ICJ do not follow a formal doctrine of precedent. Of course, as a practical matter, and in order to develop a coherent body of jurisprudence, they generally do so.91 Following the war crimes prosecutions after the close of World War II, four decades passed before an international tribunal was established and charged with applying IHL. In 1993 the United Nations Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY).92 In the years since, ad hoc tribunals have been established by various means to address both inter- and intranational IHL violations occurring during conflicts in Cambodia, East Timor, Iraq, Rwanda, and Sierra Leone. In 2002, following ratification of the Rome Statute by sixty states, a permanent International Criminal Court was established in The Hague, Netherlands. Despite the technically unauthoritative nature of their judgments, the dearth of previous judicial decisions interpreting and applying IHL has rendered the holdings of these courts extremely significant. The ICTY has been the most influential of the tribunals. In many cases, the court has merely confirmed longstanding IHL tenets. For instance, in Blaskic, the court acknowledged that command responsibility for the acts of subordinates includes situations in which a commander should

88

On the influence of the human rights movement on this development, see Meron 2000. ICJ Statute, supra note 8, Article 38(1)(d). 90 For instance, the Statute of the International Court of Justice provides that ‘‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.’’ Id. Article 59. 91 See, for example, the judgment of the Appeals Chamber of the ICTY in Aleksovski, which found that ‘‘in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.’’ Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber Judgment, para 107 (March 24, 2000). 92 S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993). 89

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have known a war crime was being committed,93 while in Erdemovic, it rejected the defense of superior orders.94 In others, the ICTY has added granularity to the IHL governing the conduct of hostilities. For example, in Galic, it emphasized that the prohibition on terrorizing a civilian population applies only when the operation is designed to cause terror.95 This is an important affirmation of the military necessity-humanity balance resident in the norm, since many military operations incidentally terrorize the population without terror being their purpose. Galic also confirmed that the prohibition against directly targeting civilians is absolute and therefore not subject to considerations of military necessity, and that to be prohibited as an attack on civilians, an act must be willful.96 In the other key ICTY conduct of hostilities case, Strugar, the tribunal considered ‘‘devastation not justified by military necessity.’’97 Importantly, it did not treat military necessity as a constraint that was additional to the extant law. Rather, it defined the term by reference to the customary definition of ‘‘military objective’’ codified in Article 52(2) of Additional Protocol I, such that any attack against a nonmilitary objective is unnecessary.98 In these and related cases, the tribunal has shown impressive sensitivity to maintaining the military necessity-humanity balance.99 93

Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment, para 332 (March 3, 2000). In The High Command Case, the American military tribunal at Nuremberg held that for responsibility to attach in the absence of knowledge, there must be a ‘‘personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.’’ United States v. von Leeb (The High Command Case), in 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 543–44 (1950); see also ICC Statute, supra note 37, Article 28; ICTY Statute, supra note 40, Article 7(3); Prosecutor v. Strugar, Case. No. IT-01-42-A, Appeals Chamber Judgment, para 299 (July 17, 2008). 94 Prosecutor v. Erdemovic, Case No. IT-96-22-A, Appeals Chamber Judgment, Separate Opinion of Judge McDonald and Judge Vohrah (adopted by the Chamber on this issue), para 34 (October 7, 1997); see also ICC Statute, supra note 37, Article 33; ICTY Statute, supra note 40, Article 7(4); Nuremberg Charter, supra note 46, Article 8. 95 Prosecutor v. Galic, Case No. IT-98-29-A, Appeals Chamber Judgment, paras 90, 103–04 (November 30, 2006). 96 Id. paras 130, 140; see also Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeals Chamber Judgment, para 109 (July 29, 2004). 97 Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment, paras 293–94 (January 31, 2005). 98 Id. para 295. 99 At times, the ICTY has gone further by usefully extrapolating norms from existing IHL. As an example, in the Celebici Camp case, it held that the principle of command responsibility for war crimes extended to civilians and that the key to the concept is not the formal title of the individual, but rather the fact of ‘‘effective exercise of power or control’’ over a subordinate committing a war crime. Prosecutor v. Delalic (Celebici Camp), Case No. IT-96-21-A, Appeals Chamber Judgment, para 197 (February 20, 2001). The ICTY has also addressed the troublesome dilemma of characterizing a conflict as international or non-international. This is critical because the nature of the conflict determines what body of law applies. Thus, in Tadic, the tribunal accepted the premise of vertically mixed conflicts by holding that an intrastate armed conflict can morph into international armed conflict through the participation of other states. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment, para 84 (July 15, 1999).

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Somewhat more daringly, the ICTY has occasionally confirmed positions which had previously been questionable as a matter of strict legal interpretation. In Nicaragua, the ICJ had held that the rules set forth in Common Article 3 to the 1949 Geneva Conventions ‘‘constitute a minimum yardstick’’ in international armed conflict, for they represent ‘‘elementary considerations of humanity.’’100 Although a sensible holding, it was not at all certain that the assertion represented lex lata, for on its face, Common Article 3 applies only to the ‘‘case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.’’101 Nevertheless, in Tadic, and later Celebici, the ICTY embraced the notion, specifically rejecting an argument that there was neither opinio juris nor sufficient state practice to establish its customary nature in international armed conflict.102 Unfortunately, the distinction between ‘‘law-finding’’ and ‘‘lawmaking’’ has occasionally been blurred. The ICTY has been especially active in identifying purported customary rules applicable in noninternational armed conflict.103 Faced with a scarcity of applicable treaty law, the Tadic Court stated that ‘‘it cannot be denied that customary rules have developed to govern internal strife.’’104 The tribunal went on to adopt an impressive catalogue of international armed conflict rules into the law of non-international armed conflict. There is no question that many such rules have matured into customary law applicable in internal conflicts. But the broad sweep of the judgment makes it difficult to discern those that have from those that have not.105 Furthermore, the tribunal’s incorporation of such rules neglects the fact that, for reasons outlined above, states, the sole ‘‘lawmakers in international law,’’ have intentionally crafted a far narrower legal regime for non-international armed conflicts. In justification of its approach, the ICTY implicitly cited the shifting balance between military necessity and humanity. According to the tribunal, ‘‘[a] State sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach.’’106 100

Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 14, at 114 (June 27). See conventions cited supra note 65. 102 Prosecutor v. Tadic, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 98–99 (October 2, 1995); see also Prosecutor v. Delalic, Case No. IT-96-21-A, Appeals Chamber Judgment, paras 157, 174 (February 20, 2001). 103 For an unofficial compilation of such rules, see generally, Schmitt et al. 2006, reprinted in Dinstein and Domb 2006. 104 Tadic, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para 127. The tribunal cited, as examples, the protection of civilians from indiscriminate attack, the protection of cultural property, the notion of taking a direct (active) part in hostilities, and prohibitions applicable in international armed conflict on specific methods and means of warfare. Id. 105 The ICTY’s cautionary note in this regard provides little guidance in making the distinction. Specifically, it noted that only a small number of rules and principles applicable to international armed conflict have been extended to non-international armed conflict, and that ‘‘the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.’’ Id. para 126. 106 Id. para 97. 101

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This being so, ‘‘the distinction between interstate wars and civil wars is losing its value’’ and ‘‘international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings.’’107 Noble as the desire to protect human beings may be, and despite the undeniable growth of the customary law bearing on non-international armed conflict, such pronouncements are more suited to proposals of lex ferenda than claims of lex lata. On rare occasions, the ICTY has gone too far in its willingness to articulate new law. In Krupreskic, it opined that the prohibition on belligerent reprisals against civilians that appears in Additional Protocol I had become customary.108 Although admitting an absence of state practice, it argued that, in light of the Martens Clause, ‘‘principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent.’’109 For the tribunal, ‘‘a slow but profound transformation of humanitarian law under the pervasive influence of human rights has occurred,’’ such that ‘‘belligerent reprisals against civilians and fundamental rights of human beings are absolutely inconsistent legal concepts.’’110 In its view, the establishment of international tribunals further augured against the need for reprisals as a means of enforcing IHL.111 This is a curious finding for four reasons. First, it is counterfactual; certain key states have expressed their view on the subject. In its Commander’s Handbook on the Law of Naval Operations, the United States notes that ‘‘[r]eprisals may be taken against enemy armed forces, enemy civilians other than those in occupied territory, and enemy property.’’112 Similarly, the British Manual of the Law of Armed Conflict states that reprisals ‘‘may sometimes provide the only practical means of inducing the adverse party to desist from its unlawful conduct.’’113 The United Kingdom specifically qualified the issue of reprisals when ratifying Additional Protocol I.114 It even went so far as to specifically address the Kupreskic judgment in a footnote to its manual, stating

107 Id. The same approach was taken in Celebici: ‘‘[T]o maintain a distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the difference in nature of the conflicts would ignore the very purpose of the Geneva Conventions, which is to protect the dignity of the human person.’’ Prosecutor v. Delalic, Case No. IT-96-21-A, Appeals Chamber Judgment, para 172 (February 20, 2001). 108 Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, paras 527–33 (January 14, 2000). 109 Id. para 527. 110 Id. para 529. 111 Id. para 530. 112 Commander’s Handbook, supra note 29, Sect. 6.2.4. 113 U.K. Ministry of Def. 2004, p. 421. 114 See UK Reservations, supra note 36. The United Kingdom noted that, in the event of a ‘‘serious and deliberate attack []’’ by the enemy in violation of Articles 51–55 of Additional Protocol I, it would ‘‘regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations.’’ Id.

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that ‘‘the court’s reasoning is unconvincing and the assertion that there is a prohibition in customary law flies in the face of most of the state practice that exists.’’115 Even the ICRC’s study, Customary International Humanitarian Law, concludes that ‘‘[b]ecause of existing contrary practice, albeit very limited, it is difficult to conclude that there has yet crystallized a customary rule specifically prohibiting reprisals against civilians.’’116 As these examples illustrate, some states still consider reprisals as militarily necessary to force an enemy to desist in its own violations of IHL. Second, the ICTY erred in basing its reasoning on human rights law. As acknowledged by the ICJ in Nuclear Weapons, human rights law is conditioned by the lex specialis of IHL.117 Reprisals have long been an element of the latter, so much so that set conditions for their execution are widely accepted.118 In light of this lex specialis, human rights law cannot deprive reprisals of their customary character.119 Third, international tribunals do not suffice to enforce IHL, if only because they are of limited jurisdiction. For instance, the ICTY may only hear cases ‘‘committed in the territory of the former Yugoslavia since 1 January 1991,’’120 while the ICC’s jurisdiction is limited by subject matter (reprisal against civilians is not included), party status of the state of nationality or state where the war crime is alleged to have been committed, action by the Security Council, and so forth.121 Fourth, and most problematic, the discussion of the customary status of reprisals was arguably unnecessary since, as the ICTY itself noted, the parties to the conflict were bound by the ‘‘relevant treaty provisions prohibiting reprisals.’’122 This rendered the entire discussion of reprisals troubling, for it meant that the tribunal took on a highly controversial issue, while recognizing there was no need to do so, and proceeded to purportedly find the law. The lesson to be drawn from the foregoing discussion is that while international tribunals represent a positive step forward in filling IHL’s enforcement void, their

115

UK Ministry of Def. 2004, at 423 n.62. Henkaerts and Doswald-Beck 2005, at 523. 117 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 240 (July 8). 118 See, e.g. Commander’s Handbook, supra note 29, Sect. 6.2.4.1; UK Ministry of Def. 2004, p. 421; Can. Office of the Judge Advocate Gen. 2001, at 15-2 to -3; see also Dinstein 2004, at 220–27. 119 For a classic treatment of the subject, see Kalshoven 1971. 120 ICTY Statute, supra note 40, Article 9. 121 See ICC Statute, supra note 37, Articles 5–7, 11–15. 122 Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Chamber Judgment, para 536 (January 14, 2000). In 1993, both Croatia and Bosnia and Herzegovina were parties to Additional Protocols I and II, in addition to the four Geneva Conventions of 1949. See International Committee of the Red Cross, State Parties to the Following International Humanitarian Law and Other Related Treaties as of 13-April-2010, http://www.icrc.org/IHL.nsf/%28SPF%29/party_ main_treaties/$File/ IHL_and_other_related_Treaties.pdf. 116

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influence on the interpretation and application of the law, despite the fact that their judgments theoretically apply only to the case at hand, is significant. This rings especially true with regard to the balance between military necessity and humanity. A clear propensity exists to inflate the effect of the latter; indeed, the ICTY has admitted as much. When they engage in such activism, international tribunals supplant states in their role as the arbiter of the balance.

3.4.2 Other Influences on the Balance Courts are not alone in acting as informal influences on the balance between military necessity and humanity. Nongovernmental organizations (NGOs) have increasingly moved from oversight and advocacy of human rights into the field of international humanitarian law. In particular, a number of prominent organizations have begun to issue reports on IHL compliance during armed conflicts. This is, in general, a positive trend, for NGOs can often mobilize effective pressure on states to comply with the law, or help ostracize those which do not. Moreover, they enjoy access to nonstate actors in conflicts which official organs do not, thereby enhancing the likelihood of compliance. That said, NGOs typically exist for purely humanitarian purposes. Thus, their perspective on IHL is far from neutral, often departing from that of states. The fact that NGOs sometimes lack the military expertise to conduct an informed balancing complicates matters. Numerous examples can be cited to illustrate this dynamic. In 1999, NATO commenced Operation Allied Force, the air campaign against the Federal Republic of Yugoslavia to stop the slaughter of Kosovar Albanians and force Slobodan Milosovic back to the bargaining table. Amnesty International (AI) conducted a comprehensive review of the campaign.123 The report’s title, ‘‘Collateral Damage’’ or Unlawful Killings?, revealed its inherent bias. Further, of the 14,000-plus strike sorties conducted by NATO, AI identified only nine incidents—hardly a statistically meaningful set.124 The report contained numerous questionable applications of IHL. For instance, consider AI’s criticism of high-altitude bombing on the basis that the tactic heightened risk to civilians. The NGO alleged that the practice violated the requirement to take precautions in attack, such as verifying the target, selecting methods of attack that minimize civilian casualties, and determining whether an attack already underway needs to be aborted because it might violate the principle of proportionality.125

123

See generally Amnesty Int’l 2000. For the case studies, see id. at 27–63. On the air strikes, see Dep’t of Def. 2000, 69. 125 Amnesty Int’l 2000, at 15–17. The rule is codified in Additional Protocol I, supra note 7, Article 57(2); see also Commander’s Handbook, supra note 29, Sects. 8.1 and 8.3.1; Henkaerts and Doswald-Beck 2005, Chap. 5. 124

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In part, NATO’s release altitude (not less than 15,000 feet; later adjusted downward) was motivated by a desire to stay outside the threat envelope of Yugoslavian air defenses.126 AI perceived this as an imbalance in favor of military necessity at the expense of humanity, ignoring the fact that precision guided weapons operate optimally at certain altitudes which allow them sufficient time to fix onto a target and ‘‘zero-in’’ on their aim points.127 Under certain circumstances, flying at lower altitudes may actually decrease accuracy. Further, a pilot flying within a threat envelope is often distracted by enemy defenses, thereby rendering weapons delivery less controlled. AI also criticized NATO’s failure to issue warnings of attack, an arguably customary norm codified in Additional Protocol I, Article 57(2)(c). Although acknowledging that warnings are not required when ‘‘circumstances do not permit,’’ AI wondered whether, ‘‘[g]iven all the other measures taken in order to avoid NATO casualties (including high-altitude bombing), one might question whether sparing civilians was given sufficient weight in the decision not to give warnings.’’128 It also noted that aircraft survival could not explain the absence of warning when NATO employed cruise missiles.129 Aside from the technological error in the assessment, such criticism can only apply to strikes against fixed targets. Warnings in the case of movable targets or combatants would surely result in a failed mission since the targets would simply leave the area as soon as they received word of an impending attack. The report completely ignored this military reality.130 In 2003, Human Rights Watch (HRW) issued a similar report on US operations in Iraq.131 Provocatively titled Off Target, it evidenced a much better grasp of IHL than did AI’s Collateral Damage.132 However, it too reflected a particular bias towards interpretations of IHL that emphasize humanity at the expense of military necessity. For example, the United States conducted fifty leadership strikes, all of which proved unsuccessful, but which caused dozens of civilian casualties. HRW singled out targeting based on satellite phone-derived geo-coordinates during these attacks for particular criticism, arguing that the tactic ‘‘turned a precision weapon into a potentially indiscriminate one.’’133 This misstates the law. An indiscriminate weapon, or method of attack, is one ‘‘which cannot be directed at a specific military objective.’’134 In other words,

126

See Dep’t of Def. 2000, at xxiv, 65–66. Id. at 16. 128 Amnesty Int’l 2000, at 17. 129 Id. 130 Moreover, the criticism is contradictory in light of the earlier condemnation of high altitude bombing, which Amnesty International characterized as posing a greater risk to civilians. 131 See generally Human Rights Watch 2003. 132 See Schmitt 2003. The response by HRW is found in PoKempner et al. 2003. 133 Human Rights Watch 2003, at 24. 134 Additional Protocol I, supra note 7, Article 51(4)(b). 127

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weapons must be capable of being aimed at a target, such that the strike is more than simply a ‘‘shot in the dark.’’ In the leadership attacks, the use of precision weapons combined with phone intercepts ensured the weapon would strike in the general vicinity of the intended target. Additionally, the strikes were often corroborated by human intelligence. HRW missed the fact that IHL mandates no specific degree of accuracy in either weapons or tactics; it simply bars those that cannot be aimed.135 The problem was not accuracy, but rather that the targeted individuals continuously moved. The relevant legal issue is taking ‘‘feasible’’ precautions in attack to minimize civilian casualties.136 Feasibility is generally understood as meaning ‘‘that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.’’137 In executing these strikes, US forces employed time-sensitive targeting methodologies because of concern that the target might depart. This would appear to satisfy the general proposition that the adequacy of precautionary measures is to be judged on a case-by-case basis.138 Moreover, the report neglected to address the very relevant issue of proportionality. In these cases, the military advantage of decapitating the enemy command and control system would have been enormous. That the strikes proved unsuccessful is irrelevant; the legal question is the relationship between expected harm and anticipated advantage in the operation as planned, not that which eventuated. Reports evidencing a bias towards the humanity component of the balance are not limited to human rights NGOs. The recent United Nations Goldstone Report on Israeli Operation Cast Lead is a case in point.139 Criticized heavily by a number

135 IHL also bars the use of weapons which, although capable of being aimed at a military objective, have effects on the civilian population which cannot be controlled by the attacker. This aspect of the prohibition, however, does not bear on the HRW criticism. See id. Article 51(4)(c). 136 See Additional Protocol I, supra note 7, Article 57(2); Commander’s Handbook, supra note 29, Sect. 8.3.1; Henkaerts and Doswald-Beck 2005, at 54. 137 See discussion supra note 36. This was the position taken by the United States and its NATO allies at the Diplomatic Conference leading to the adoption of Additional Protocol I. See Bothe et al. 1982, at 362. The ICRC’s Commentary on the Additional Protocols suggests that ‘‘[w]hat is required of the person launching an offensive is to take the necessary identification measures in good time in order to spare the population as far as possible.’’ Sandoz et al. 1987, at 682 (emphasis added). The Commentary acknowledges that the availability of technical assets is a relevant consideration. Id. As noted in the report to the prosecutor on the NATO bombing campaign during Operation Allied Force, ‘‘[t]he obligation to do everything feasible is high but not absolute.’’ Int’l Criminal Tribunal for the Former Yugo. 2000, para 29. 138 Prosecutor v. Galic, Case No. IT-98-29-A, Appeals Chamber Judgment, para 133 (November 30, 2006). 139 Human Rights Council 2009 (Goldstone Report), paras 29–31.

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of states,140 it repeatedly mis-balances military necessity and humanity. For instance, the report criticizes attacks on police stations on the basis that policemen are civilians. With regard to Gaza, this is a questionable proposition as a matter of law.141 While acknowledging that some members of the police force may also have been members of the al-Qassam Brigades or other armed groups, and thus combatants,142 the report nonetheless concluded that the deliberate killing of 99 members of the police at the police headquarters and three police stations during the first minutes of the military operations, while they were engaged in civilian tasks inside civilian police facilities, constitutes an attack which failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity). The attacks… constituted disproportionate attacks in violation of customary international humanitarian law.143

Proportionality evaluations require consideration of both the expected incidental civilian casualties and the anticipated military advantage.144 Only when the former is excessive relative to the latter does an attack violate the proportionality principle. In the absence of any indication as to the number of police at the target area who qualified as ‘‘combatants’’ for targeting purposes, or their role in the conflict, it is impossible to make any such assessment; yet, the report does just that.145 Seemingly, the element of military advantage (which accounts for military necessity) in the proportionality principle appears to have been discarded altogether. The report also badly mischaracterizes the obligation to provide ‘‘effective advance warning… of attacks which may affect the civilian population, unless

140

The US House of Representatives passed a resolution condemning the report. See H.R. Res. 867, 111th Cong. (2009). But the UN General Assembly subsequently passed a resolution adopting the report. G.A. Res. 64/10, U.N. Doc. A/RES/64/10 (November 5, 2009). Eighteen nations including the United States voted against the resolution; 44 abstained. Israel issued its own report on the operation. See The State of Israel 2009 (Operation in Gaza). 141 The State of Israel 2009 (Operation in Gaza), paras 238–48. On the status of organized armed groups, see generally Melzer 2009. For a discussion of the topic, see infra text accompanying notes 172–75. 142 Human Rights Council 2009 (Goldstone Report), para 434. 143 Id. para 435 (internal citation omitted). 144 Additional Protocol I, supra note 7, Article 51(5)(b). 145 ‘‘Combatants’’ is used here in the broadest sense of the term, because combatants are either members of the armed forces, see GC III, supra note 23, Article 4(a), or civilians directly participating in hostilities, see Additional Protocol I, supra note 7, Article 51(3); see also infra text accompanying note 169.

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circumstances do not permit,’’146 by imposing requirements for effectiveness that are found nowhere in IHL. According to the report, an effective warning must reach those who are likely to be in danger from the planned attack, it must give them sufficient time to react to the warning, it must clearly explain what they should do to avoid harm and it must be a credible warning. The warning also has to be clear so that the civilians are not in doubt that it is indeed addressed to them. As far as possible, warnings should state the location to be affected and where the civilians should seek safety. A credible warning means that civilians should be in no doubt that it is intended to be acted upon, as a false alarm or hoax may undermine future warnings, putting civilians at risk.147

The Goldstone Report goes on to confuse the warning requirement with the principle of proportionality. Although correctly acknowledging that the requirement for warnings may be limited in cases where the element of surprise might be forfeited, it asserts that ‘‘[t]he question is whether the injury or damage done to civilians or civilian objects by not giving a warning is excessive in relation to the advantage to be gained by the element of surprise for the particular operation.’’148 No basis exists in IHL for applying this proportionality standard to the warnings requirement; they are separate and distinct norms. Conflating the two upsets the agreed-upon balance resident in them. What the authors of the report have neglected is that an attacker is already required to assess the proportionality of a mission as planned; the issuance of warnings would be a factor in that analysis, as would other factors such as timing of the attack, weapons used, tactics, life patterns of the civilian population, reliability of intelligence, and weather. A subsequent proportionality analysis would consequently be superfluous. Additionally, the warning requirement applies whenever the attack ‘‘may affect the civilian population.’’149 Warnings must be issued even if the collateral damage expected in the absence of a warning would not be excessive relative to the anticipated military advantage and even if they are unlikely to minimize harm to civilians and civilian objects (as in the case of regularly unheeded warnings). Thus, the position proffered in the report paradoxically sets a lower humanity threshold than required by IHL. Equally confusing are the practical measures required by the Goldstone Report. The ICRC’s commentary to Article 57 cites three examples of warnings: leaflets, radio warnings, and low-altitude flights over populated target areas.150 It goes on

146 Additional Protocol I, supra note 7, Article 57.2(c). Nonparty states recognize the requirement as customary. For instance, The Commander’s Handbook on the Law of Naval Operations provides that ‘‘[w]here the military situation permits, commanders should make every reasonable effort to warn the civilian population located in close proximity to a military objective targeted for bombardment. Warnings may be general rather than specific lest the bombarding force or the success of its mission be placed in jeopardy.’’ Commander’s Handbook, supra note 29, Sect. 8.9.2. 147 Human Rights Council 2009 (Goldstone Report), para 528. 148 Id. para 527. 149 Additional Protocol I, supra note 7, Article 57(2)(c). 150 Sandoz et al. 1987, at 686.

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to note that ‘‘warnings may… have a general character.’’151 Operation Cast Lead warnings included approximately 165,000 telephone calls, the dropping of 2,500,000 leaflets, radio broadcasts, and ‘‘roof-knocking’’—warning shots fired at rooftops after the individuals inside had ignored earlier warnings.152 Astonishingly, the report found these measures insufficient, despite the fact that they constituted probably the most extensive, and most specific, warnings of offensive operations over such a short period in the history of warfare.153 The military necessity-humanity balance was also distorted by the claim that ‘‘effective’’ warnings must instruct the civilian population as to the steps necessary to avoid harm. It is the party subject to attack, not the attacker, which bears the responsibility for taking precautions against the effects of attack.154 The report further asserted that the population should be able to know when a warning will actually be followed by an attack. For operational (or perhaps even humanitarian) reasons, some attacks are always canceled. No ground exists in IHL for charging the attacker with responsibility for countering the population’s reaction to the fact that warned attacks did not take place.155 Finally, the report argued that roof-knocking ‘‘constitutes a form of attack against the civilians inhabiting the building’’156 and that ‘‘an attack, however limited in itself, can[not] be understood as an effective warning in the meaning of Article 57 (2) (c).’’157 But any building that contains or will be used by combatants, or the location of which is militarily significant, qualifies as a military objective against which attack is permitted.158 The presence of noncombatants therein is a matter of proportionality, not one of directly attacking civilians. Moreover, in many of these cases the civilians had already been warned by phone. Their failure to heed the warning cannot possibly be understood to create a continuing duty to warn. Once warned effectively, the requirement has been met. In sum, on the issue of warning, the Goldstone Report badly distorts IHL’s balance between military necessity and humanity. It imposes requirements that both have no basis in the law and which run counter to state practice and military common sense. That NGOs and the UN Human Rights Commission tend to tilt the balance in the direction of humanity should come as no surprise. But recent ICRC activities 151

Id. at 687. Human Rights Council 2009 (Goldstone Report), paras 498–99 (citing The State of Israel 2009 (Operation in Gaza), para 264; Israel Ministry of Foreign Affairs 2009. 153 Human Rights Council 2009 (Goldstone Report), para 37. 154 Additional Protocol I, supra note 7, Article 58; Henkaerts and Doswald-Beck 2005, chap. 6. 155 The report also criticized prerecorded messages with generic information on the basis that they were not effective, Human Rights Council 2009 (Goldstone Report), para 529, even though the ICRC commentary on Article 57 specially cites the possibility of issuing general warnings. Sandoz et al. 1987, at 687. 156 Human Rights Council 2009 (Goldstone Report), para 37. 157 Id. para 533; see also supra text accompanying note 31 (defining ‘‘military objective’’). 158 See Additional Protocol I, supra note 7, Article 52(2). 152

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suggest that the organization, home to some of the best minds in IHL, may be moving in this direction as well. According to the ICRC’s statutes, its missions include ‘‘[working] for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and [preparing] any development thereof.’’159 This mission applies only to IHL as it currently exists, not advocacy of its evolution in any particular direction. With regard to lawmaking, the ICRC is only to ‘‘prepare’’ for development, which as a matter of law occurs through the actions of states. Two fairly recent efforts arguably exceed this mandate. In 1995, the TwentySixth International Conference of the Red Cross and Red Crescent tasked the organization to ‘‘prepare… a report on customary rules of international humanitarian law… and to circulate the report to States and competent international bodies.’’160 Ten years later, the ICRC released the monumental three-volume Customary International Humanitarian Law study.161 Since customary law is by nature unwritten, the final report amounted to an unofficial codification of IHL, one which, unlike treaties, was not subject to state sanction. Although it cannot be denied that many of the rules comprise customary law, the study’s reception by states (and many scholars) was markedly guarded.162 US concerns, captured in a joint letter from the State Department Legal Adviser and Defense Department General Counsel, focused on methodology.163 Customary law emerges through general and consistent state practice combined with opinio juris. With regard to the former, the United States criticized the study on five grounds: (1) citation of insufficient state practice to support the customary status of certain rules; (2) the type of practice relied on, in particular written materials such as military manuals and UN General Assembly resolutions; (3) the weight afforded NGO and ICRC statements, which do not reflect state practice; (4) insufficient attention to negative practice; and (5) frequent failure to give due regard to the practice of specially affected states (and the equating of practice by states with significant experience in armed conflict with that of those with little).164

159

Statutes of the International Committee of the Red Cross Article 4(1)(g). http://www.icrc. org/web/eng/siteeng0.nsf/html/icrc-statutes-080503. 160 Int’l Comm. of the Red Cross 1996a (recommending that the ICRC prepare a report on the customary rules of international law); Int’l Comm. of the Red Cross 1996b (endorsing this and other recommendations made in 1995 by the Intergovernmental Group of Experts). 161 See Henkaerts and Doswald-Beck 2005. The final report contained 161 rules with commentary and two volumes setting forth the state practice from which the rules derived. 162 See generally Wilmshurst and Breau 2007. 163 Letter from John B. Bellinger, III, Legal Adviser, U.S. Dep’t of State, and William J. Haynes, Gen. Counsel, U.S. Dep’t of Def., to Jakob Kellenberger, President, Int’l Comm. of the Red Cross (November 3, 2006). http://www.defense.gov/home/pdf/Customary_International_Humanitiarian_Law.pdf. The letter wisely avoided extensive citation of specific rules that it believed had not matured into custom, so as not to implicitly acknowledge the customary status of the others. 164 Id. at 2–3.

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As to opinio juris, U.S. criticism focused on the repeated inference of its existence from state practice alone; conclusions based on the position of states which are parties to a relevant treaty regime, such as Additional Protocol I; and heavy reliance on the provisions of military manuals, which may be based on a sense of legal obligation, but which are also influenced by policy and operational concerns.165 The United States also questioned the formulation of the rules, noting that many ‘‘are stated in a way that renders them overbroad or unconditional, even though state practice and treaty language on the issue reflect different, and sometimes substantially narrower, propositions.’’166 In the US view, these flaws led to two general errors permeating the study: first, its assertion that ‘‘a significant number of rules contained in the Additional Protocols… have achieved the status of customary international law’’; and second, the lack of evidence to support the customary status of many of the purported rules for non-international armed conflict.167 In terms of the military necessity-humanity balance, these points reveal a broader concern that US military options might be limited by what is essentially lex ferenda. In 2009, the ICRC again attempted to clarify IHL with issuance of its Interpretive Guidance on the Notion of Direct Participation in Hostilities (Guidance).168 The product of a five-year project bringing together some of the most distinguished contemporary IHL practitioners and scholars, the Guidance is intended to provide direction on the customary norm codified in Additional Protocol I, Article 51(3): ‘‘Civilians shall enjoy the protection afforded by [the section of the Protocol on general protection against the effects of hostilities], unless and for such time as they take a direct part in hostilities.’’ This short provision raises three interpretive quandaries: (1) Who is a civilian? (those who are not civilians do not benefit from protection from attack, nor factor into proportionality calculations or precautions in attack requirements); (2) What acts amount to direct participation? and (3) When does the forfeiture of protection occur? Article 13(2) of Additional Protocol II articulates an identical standard for non-international armed conflict.169 When consensus among the experts proved impossible to reach, the ICRC released the document as one reflecting solely its own views. A firestorm of

165

Id. at 3–4. Id. at 4. 167 Id. 168 See Melzer 2009. The author was a member of the group of international experts involved in the project. Many of the comments that follow reflect his experience during sessions of the experts meeting held between 2003 and 2008. 169 Additional Protocol II, supra note 64, Article 13(2); see also ICC Statute, supra note 37, Articles 8(2)(b)(i), 8(2)(e)(i); Commander’s Handbook, supra note 29, Sect. 8.2.2; Henkaerts and Doswald-Beck 2005, at 19–24; Schmitt et al. 2006, Sect. 2.1.1.2; UK Ministry of Def. 2004, pp. 53–54. 166

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controversy erupted.170 Most objections can be traced to a sense that the Guidance had badly distorted the military necessity-humanity balance. Regarding the concept of civilians, the Guidance provides a negative definition stating that they comprise all those who are neither members of the armed forces of a party, nor participants in a levée en masse.171 This approach displays sensitivity to the military necessity prong by including members of organized armed groups in the concept of armed forces, regardless of whether they comply with the requirements for combatant status, and treatment as prisoners of war, under the Third Geneva Convention.172 As the Guidance perceptively states: [I]t would contradict the logic of the principle of distinction to place irregular armed forces under the more protective legal regime afforded to the civilian population merely because they fail to distinguish themselves from that population, to carry their arms openly, or to conduct their operations in accordance with the laws and customs of war.173

However, the Guidance adds two further requirements: (1) that the group ‘‘belong to a Party to the conflict’’ (i.e., the group must have a de facto relationship with a state in an international armed conflict)174; and (2) that only those with a ‘‘continuous combat function’’ (such as conducting attacks) qualify as members of the group for targeting purposes.175 Members of autonomous groups unaffiliated with the government, such as the Shi’a militia in Iraq during the early days of Operation Iraqi Freedom, are therefore civilians. So too are non-fighting members of groups affiliated with a party in an international armed conflict and of rebel groups other than dissident armed forces in a non-international armed conflict. The practical effect is to render such individuals subject to attack only while they are actually directly participating in the hostilities. By contrast, members of a state’s armed forces may be attacked at any time,176 thereby creating a double standard that benefits those who enjoy no ‘‘right’’ to participate in the conflict in the first place. Critics claim the requirements thereby ignore the logic of military necessity, as set forth by the ICRC itself in the excerpt above. Similar problems surfaced with respect to the notion of direct participation. The Guidance posits three cumulative constitutive elements: (1) the act in question must be likely to adversely affect the military capacity or capabilities of a party to the conflict or harm persons or objects that IHL protects from attacks, such as civilians; (2) a causal link must exist between the act and harm caused; and (3) there must be a nexus between the act and the conflict.177 Although the elements 170

See, e.g., Schmitt 2010b. A forthcoming issue of the N.Y.U. J Int Law Politics will feature critical essays regarding this document. 171 Melzer 2009, at 20. 172 GC III, supra note 23, Article 4(A)(2). 173 Melzer 2009, at 22. 174 Id. at 23–24. 175 Id. at 26, 34–35. 176 See, e.g., Commander’s Handbook, supra note 29, Sect. 8.2.1. 177 Melzer 2009, at 46.

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generally represent a useful contribution, they suffer from a number of flaws. In particular, the approach fails to take account of acts which benefit a party to the conflict, such as conducting specialized training for combat, building defensive positions at forward locations, or repairing military vehicles or aircraft so they can quickly return to battle. The Guidance disregards the fact that individuals engaging in beneficial actions may sometimes pose a greater problem than fighters. To extend protection from attack to those directly enhancing the enemy’s military operations and capacity makes little sense militarily. More problematic is the causation requirement. Objections are somewhat technical and need not be explored here, but an example cited in the Guidance usefully illustrates how it accords disproportionate weight to the humanity prong of the balance.178 It offers the case of assembly or storage of an improvised explosive device (IED) in a workshop as illustrative of activities which fail the test. According to the Guidance, the acts ‘‘may be connected with the resulting harm through an uninterrupted causal chain of events, but, unlike the planting or detonation of that device, do not cause the harm directly.’’179 In that most casualties in Iraq and Afghanistan result from IED attacks, it is unimaginable that states would agree that related activities are not ‘‘direct enough’’ to justify attack on those engaging in them.180 This is particularly so since insurgents seek to emplace the devices secretly; acting on intelligence that indicates they are built at a particular location may be the only effective way to foil attack. As to the ‘‘for such time’’ temporal issue, the Guidance adopts the position that only ‘‘measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of the act.’’181 Critics argue that this standard creates a ‘‘revolving door.’’ A civilian direct participant who conducts recurring operations against the enemy would only be attackable during the period from the time of departure until return. Between operations, the direct participant could not be attacked. Again, this places members of a state’s armed forces at a serious disadvantage, since they may be attacked at any time. Although this interpretation would seem to fly in the face of a reasonable balance between military necessity and humanity, the Guidance claims the phenomenon serves as an ‘‘integral part, not a malfunction of IHL. It prevents attacks on civilians who do not, at the time, represent a military threat.’’182 But the reason civilians lose protection when they directly participate in hostilities is because they have chosen to be part of the conflict, not because they represent a threat. 178

See Schmitt 2010a. Melzer 2009, at 54. 180 The experts were divided on this issue. Nearly all those with military experience or who served governments involved in combat supported the characterization of IED assembly as direct participation. 181 Melzer 2009, at 65. This formula derives in part from the commentary to the direct participation articles in Additional Protocols I and II. See Sandoz et al. 1987, at 618–19, 1453. 182 Melzer 2009, at 70. 179

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Additionally, the approach is militarily insensate. Consider again the emplacement of an IED. As noted, those who place them intentionally keep their operations secret, for if they or their device are discovered the operation can easily be foiled. Attacking them between operations based on actionable intelligence may represent the only opportunity to deter further attack. A more sensible approach would treat civilians who directly participate as valid military objectives until they unambiguously opt out of hostilities through extended nonparticipation or an affirmative act of withdrawal.183 The most contentious aspect of the Guidance is its treatment of the relationship between the principles of military necessity and humanity. According to the Guidance, [I]n addition to the restraints imposed by international humanitarian law on specific means and methods of warfare… the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.184

As an example, ‘‘it would defy basic notions of humanity to kill an adversary… where there manifestly is no necessity for the use of lethal force.’’185 The contention represents a misapplication of the law. Most significantly, IHL already accounts for the situation through the prohibition of declaring ‘‘no quarter,’’ and the related rule barring attacks on those who have surrendered.186 As noted, military necessity infuses IHL; it is not a prohibition which applies over and above the extant rules. The Guidance’s approach also shifts the burden of decision from a direct participant fully capable of surrender to his or her adversary. Such attempts to impose a continuum of force on the battlefield, the most notable being Jean Pictet’s famous dictum that ‘‘[i]f we can put a soldier out of action by capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill him,’’187 have been rejected by states and scholars alike.188 That the Guidance was promulgated by the preeminent international humanitarian law organization, yet rejected by project participants from states with the greatest involvement in contemporary armed conflict,189 dramatizes the disquiet 183

See Schmitt 2005, pp. 535–536. Melzer 2009, at 77. 185 Id. at 82. 186 Those who are hors de combat either because they have surrendered or are wounded and no longer fighting may not be attacked. Additional Protocol I, supra note 7, Articles 40–41; Commander’s Handbook, supra note 29, Sects. 8.2.3 and 8.2.3.3; Henkaerts and Doswald-Beck 2005, pp. 161–70; UK Ministry of Def. 2004, p. 57. 187 Pictet 1985, pp. 75–76 (cited with approval in Melzer 2009, at 82 n. 221). 188 See, e.g., Kalshoven 1984. 189 For instance, the contributors of the critical essays cited supra in note 170 include W. Hays Parks of the U.S. Office of the Secretary of Defense (General Counsel’s Office); Brigadier General Kenneth Watkin, Judge Advocate General of the Canadian Forces; Air Commodore William Boothby of the Royal Air Force; and the author. It must be emphasized that all were writing in their personal capacities. 184

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over the trajectory being urged on the military necessity-humanity balance by NGOs, the UN, and the ICRC.190 Israel’s decision to refuse cooperation with the Goldstone mission and the United States’ disavowal of the Customary International Humanitarian Law study exemplify state-based push back. But resistance by states to what they perceive as misapplication of the balance is one thing. Arguments that conflict has so changed in the twenty-first century that existing IHL norms no longer fairly balance military necessity and humanity, and therefore, should be disregarded, are quite another. For instance, in the aftermath of the terrorist attacks of September 11, 2001, the Justice Department’s Office of Legal Counsel issued a memorandum finding the 1949 Geneva Convention III provisions governing detention of those captured on the battlefield inapplicable to the ongoing conflict with al Qaeda or the Taliban, such that a decision to apply its precepts would be based solely on policy rather than law.191 Secretary of State Colin Powell correctly objected to the President’s acceptance of the position and requested its reconsideration. For Powell, the protections could only be withdrawn following decision of a status tribunal convened under Article V of the Convention.192 In a memorandum urging the President to adhere to his decision, White House Counsel Alberto Gonzales chillingly argued: [T]he war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop to the [1949 Geneva 190

Such disquiet is exacerbated by a globalized media that can easily broadcast the tragic humanitarian consequences of warfare, but has little means to capture the military necessity of the operations that underlie them. At the same time, the academic community is increasingly populated by IHL scholars with little or no military experience. To the extent they have experienced conflict, it is often as members of humanitarian NGOs. It is unsurprising that they bring a particular perspective to the analysis of humanitarian law. 191 Memorandum from John Yoo, Deputy Assistant Att’y Gen., and Robert J. Delahunty, Special Counsel, to William J. Haynes II, Gen. Counsel, Dep’t of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 9, 2002) (on file with author); see also Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel, Dep’t of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 22, 2002) (on file with author). In response, Secretary of Defense Donald Rumsfeld instructed the Chairman of the Joint Chiefs of Staff that, while the detainees were not entitled to treatment as prisoners of war, the Combatant Commanders should nevertheless ‘‘treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.’’ Memorandum from Donald H. Rumsfeld, Sec’y of Def., to the Chairman of the Joint Chiefs of Staff, Status of Taliban and Al Qaeda (January 19, 2002) (on file with author). 192 Memorandum from Alberto R. Gonzales to the President, Decision re Application of the Geneva Conventions on Prisoners of War to the Conflict with al Qaeda and the Taliban (January 25, 2002) (on file with author). Secretary Powell sent a follow-up memorandum to Gonzales renewing his request for reconsideration. Memorandum from Colin Powell to Counsel to the President, Assistant to the President for Nat’l Sec. Affairs, Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (January 26, 2002) (on file with author). On this exchange, see Murphy 2004, pp. 820–31. On the entire affair, see Mayer 2008.

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Convention on Prisoners of war]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.193

On February 7, 2002, President Bush determined that the provisions did not apply to al Qaeda, and that while he could suspend application of the convention in the conflict with the Taliban, he chose not to do so. Nevertheless, he made a blanket finding that captured Taliban were unlawful combatants and that, therefore, they did not benefit from the relevant protections. For the President, ‘‘this new paradigm… require[d] new thinking in the law of war.’’194 Such machinations are no less disruptive of IHL than those set forth above; on the contrary, they are more nefarious, since it is ultimately states which make law. Fortunately, this counter-legal trend is being slowly reversed.

3.5 Conclusion Military necessity and humanity exist in fragile equipoise in international humanitarian law. On the one hand, war cannot be conducted without restriction, for states are responsible for the well-being of their populations (including combatants) and must therefore agree with potential enemies on limitations that safeguard their interests. Moreover, history has demonstrated that undisciplined forces are difficult to lead, sharpen the enemy resolve to fight on, and antagonize the population of areas under their control. Current U.S. counterinsurgency doctrine testifies to the military utility of limits on the use of force.195 Yet, if humanitarianism reigned supreme, war would not exist. Since the tragic reality is that war does, states must be reasonably free to conduct their military operations effectively. As illustrated by the survey of treaty law, codification has resulted in a progressive trend toward emphasis on the humanity prong of the military necessityhumanity balance. States can be reasonably comfortable with this evolution because they participate in setting the balance through codification and state 193

Memorandum from Alberto R. Gonzales, supra note 186. Memorandum from George W. Bush to the Vice President et al., Humane Treatment of al Qaeda and Taliban Detainees (February 7, 2002) (on file with author). That said, he ordered that detainees be treated in accordance with the standard promulgated by Rumsfeld—that is, humanely to the extent such treatment comported with military necessity. Id. 195 See, for example, the approach taken in the US COIN Manual. Headquarters, Dep’t of the Army & Headquarters, Marine Corps Combat Dev. Command, Counterinsurgency, FM 3-24, MCWP 3-33.5 (2006). For a general discussion of the subject, see Schmitt 2009. 194

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practice. Those which perceive a prospective norm as unbalanced may opt out of the treaty regime or engage in practice that prevents the emergence of a customary norm. International tribunals have taken some control over the process from the hands of states. Although their decisions are of technically limited reach, the reality is that they exert significant influence on the general understanding of IHL. While tribunals have usually proved useful in confirming or interpreting IHL norms, it must be remembered that they do not operate from the same perspective as states, for they do not directly bear the consequences of their judgments as to the appropriate balance between military necessity and humanity. Accordingly, their reasoning is less focused on the balance. This explains, to a degree, the discernable preference for normative solutions emphasizing humanity at the expense of military necessity. NGOs and others are even more unfettered in pushing the balance in the direction of humanity. After all, their raison d’être is to do so, and they pay no price for forfeiting a degree of military necessity. The result is, as has been illustrated, a frequent assertion of lex ferenda in the guise of purported lex lata. If not understood for what they are, such efforts risk distorting the prescriptive process. What is often forgotten is that the state-based process preserves the integrity of IHL’s balance by facilitating discovery, whether through codification or practice, of where consensus lies. States are uniquely situated to perform the task since they are directly affected by decisions regarding military necessity and humanity. Only they can clearly grasp the predicament posed by a rebalancing that fails to take full account of the element of military necessity. The greater the likelihood a state is to find itself entangled in armed conflict, the more likely it will be to resist such trends in order to preserve its freedom of action on the battlefield. The less war is on the horizon, the more a state will champion the principle of humanity, if only to cater to public sensibilities. Fortunately, involvement of many European states in Afghanistan and elsewhere has served as a wakeup call for those in the latter category. In order to maintain an acceptable balance between the two principles, strict fidelity to the existing IHL rules is essential. It is not appropriate, for instance, to supplement express rules with any further requirement to assess military necessity or humanity considerations; the requisite balancing has already taken place. Caseby-case determinations of where the balance should lie would generate disrespect for extant rules on the part of those negatively affected and render the norms to be applied in the fog of war less certain for all. Indeed, the need for normative clarity in part explains why customary law does not emerge until there is both general state practice and opinio juris. Ultimately, the attention being afforded to international humanitarian law is a positive feature of contemporary conflict. That states, tribunals, nongovernmental and intergovernmental organizations, academics, and the general public are involved in the elucidation, dissemination, and enforcement of IHL serves to rebut Sir Hersch Lauterpacht’s famous dictum that ‘‘if international law is… at the

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vanishing point of law, the law of war is… at the vanishing point of international law.’’196 The delicate balance between the principles of military law and necessity must be maintained, lest he be proven correct.

Abbreviations AI

Amnesty International

CCW

Convention on Conventional Weapons

HRW

Human Rights Watch

ICC

International Criminal Court

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICTY

International Criminal Tribunal for the former Yugoslavia

IED

Improvised explosive device

IHL

International humanitarian law

NGO

Non-governmental organization

US

United States of America

UN

United Nations

References Amnesty Int’l (2000) NATO/Federal Republic of Yugoslavia: ‘‘Collateral Damage’’ or Unlawful killings? Violations of the Laws of War by NATO During Operation Allied Force, AI index EUR 70/018/2000, June 5, 2000. http://www.amnesty.org/en/library/info/EUR70/018/2000 Best G (1983) Humanity in warfare: the modern history of the international law of armed conflicts 32:172–179 Bordwell P (1908) The law of war between belligerents: a history and commentary 5:59 Bothe M, Partsch KJ, Solf WA (1982) New rules for victims of armed conflicts: commentary on the two 1977 protocols additional to the Geneva Conventions of 1949 Can. Office of the Judge Advocate Gen. (2001) Law of armed conflict at the operational and tactical levels, joint doctrine manual B-GJ-005-104/FP-021 (August 13, 2001) Carnahan BM (1998) Lincoln, Lieber and the laws of war: the origins and limits of the principle of military necessity, Am J Int L 92:213 Clinton W (1997) U.S. leads in land mine issues while others talk, 12 DEF. issues 47. http://www.defense.gov/speeches/speech.aspx?speechid=785

196

Lauterpacht 1952, p. 382.

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Dep’t of Def (2000) Report to Congress: KOSOVO/Operation Allied Force after-action report Dinstein Y (2004) The conduct of hostilities under the international law of armed conflict 16–20 Dinstein Y, Domb F (eds) (2006) 36 Israel Yearbook on Human Rights (special supplement) Downey WG Jr (1953) The law of war and military necessity, Am J Int L 47:251 Dunbar NCH (1952) Military necessity in war crimes trials, Brit YB Int L 29:442 Fenwick Ch (1965) International law 655 (4th ed) Henkaerts J-M, Doswald-Beck L (2005) 1 Customary International Humanitarian Law Human Rights Council (2009) Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/ 12/48. http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_ Report.pdf Human Rights Watch (2003) Off Target: The Conduct of the War and Civilian Casualties in Iraq, December 11, 2003. http://www.hrw.org/en/reports/2003/12/11/target Int’l Comm. of the Red Cross (1996a) 26th International Conference of the Red Cross and Red Crescent, Annex II: Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–27 January 1995: Recommendations. 310 Int Rev Red Cross 55 Int’l Comm. of the Red Cross (1996b) International Humanitarian Law: From Law to Action, January 1, 1996, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/57JMRU Int’l Criminal Tribunal for the Former Yugo (2000) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (June 13, 2000). http://www.icty.org/x/file/Press/nato061300.pdf Israel Ministry of Foreign Affairs (2009) IDF Issues Warnings to the Civilians of Gaza http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_ 7-Jan-2009.htm Kalshoven F (1971) Belligerent Reprisals Kalshoven F (1984) The Soldier and His Golf Clubs. In: Christophe S (ed) Studies and essays on international humanitarian law and red cross principles 369 Lauterpacht H (1952) The problem of the revision of the law of war, Brit YB Int L 29:360 Lieber F (1863) U.S. War Dep’t, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field Matheson MJ (1987) Session one: the United States Position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions, Am U J Int L Policy 2:419 Mayer J (2008) The dark side: the inside story of how the war on terror turned into a war on american ideals McCoubrey H (1991) The nature of the modern doctrine of military necessity. Revue De Droit Militaire Et De Droit De La Guerre 30:215 McDougal MS (1984) Law and minimum world public order: armed conflict in larger context, Pac. Basin L J 3:21 McDougal MS, Feliciano FP (1961) The international law of war: transnational coercion and world public order Melzer N (2009) Int’l Comm. of the Red Cross, Interpretive Guidance on the Notion of Direct Participation Under International Humanitarian Law Meron T (2000) The humanization of humanitarian law. Am J Int L 94:239 Murphy SD (2004) Contemporary practice of the United States relating to international law. Am J Int L 98:820 O’Brien WV (1957) The meaning of ‘Military Necessity’ in International law, WORLD POLITY 1:109 Oppenheim L (1952) 2 International Law: a Treatise. In: Hersch L (ed) 7th edn Pictet J (1985) Development and principles of international humanitarian law 75–76 PoKempner D, Garlasco M, Docherty B (2003) Off target on the iraq campaign: a response to professor Schmitt, Y.B. Int Humanitarian L 6:111 Rogers APV (2004) Law on the Battlefield, 2d edn

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Root E (1921) President, Am Soc’y of Int’l Law, Opening Address at the Fifteenth Annual Meeting of the American Society of International Law, in 15 Am Soc Int L Proc 1 Sandoz Y et al (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 [hereinafter AP Commentary] Schindler D, Toman J (eds) (2004) The laws of armed conflicts: a collection of conventions, resolutions and other documents 3, 4th edn Schmitt MN (1997) Green war: an assessment of the environmental law of international armed conflict, 22 YALE J Int L 1 Schmitt MN (2003) The conduct of hostilities during operation Iraqi freedom: an international humanitarian law assessment. Y B Int Humanitarian L 6:73 Schmitt MN (2005) Humanitarian law and direct participation in hostilities by private contractors or civilian employees, CHI J Int L 5:511 Schmitt MN (2009) Targeting and International Humanitarian Law in Afghanistan, Israel Yearbook on Human Rights 39:99 Schmitt MN (2010a) Deconstructing direct participation in hostilities: the constitutive elements, 42 N Y U J Int L POL Schmitt MN (2010b) The interpretive guidance on the notion of direct participation in hostilities: a critical analysis, 1 Harv Nat’L Security J Schmitt MN, Garraway CHB, Dinstein Y (2006) Int’l Inst. of Humanitarian Law, The Manual on the Law Of Non-International Armed Conflict With Commentary Sofaer AD (1987) The position of the United States on current law of war agreements: remarks of Judge Abraham D. Sofaer, Legal Adviser, United States Department of State, January 22, 1987, 2 Am U J Int L Policy 460 The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions (1987) Am U J Int L Policy 2:415 The State of Israel (2009) The Operation in Gaza, 27 December 2008–18 January 2009: Factual and Legal Aspects. http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0017675DAFEF7/0/GazaOperationwLinks.pdf UK Ministry of Def. (2004) The Manual of the law of armed conflict Wilmshurst E, Breau S (eds) (2007) Perspectives on the Icrc study on customary International Humanitarian Law. Cambridge University Press, Cambridge

Chapter 4

The Principle of Discrimination in Twenty First Century Warfare

Abstract This chapter examines the international humanitarian law principle of discrimination in the context of likely twenty first century warfare. The principle requires that those engaged in hostilities distinguish between civilians (and their property) and military objectives. The continued viability of the norm in light of future methods and means of warfare, which arguably constitute a ‘‘revolution in military affairs’’, is an open question. In some cases, future warfare will encumber compliance. In others, new methods and means of warfare will make greater discrimination possible. The chapter concludes with tentative suggestions on how to soften the impact of any potentially negative trends.

Contents 4.1 Introduction..................................................................................................................... 4.2 The Principle of Discrimination .................................................................................... 4.3 The Possible Impact of Future War .............................................................................. 4.3.1 Accentuation of Global Divisibility................................................................... 4.3.2 A Blurring of the Lines Between Protected Persons and Objects and Valid Military Targets ............................................................ 4.3.3 From Battlefield to ‘‘Battlespace’’ ..................................................................... 4.3.4 The Advent of Precision Engagement ............................................................... 4.3.5 Disparate Cognitive Approaches........................................................................ 4.4 Assessing the Prospects for the Future.......................................................................... 4.5 Fostering Humanitarian Ends in Future War ................................................................ 4.6 Concluding Thoughts ..................................................................................................... References................................................................................................................................

132 136 141 141 146 149 150 158 159 165 169 170

Previously published in 2 Yale Human Rights and Development Law Journal (1999) 143.

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_4,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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4.1 Introduction }1 The premise that warfare is a constantly evolving phenomenon is axiomatic. In this century alone, consider the dramatic transmutations caused, for instance, by the machine gun, tank, airplane, radar, guided missile, and nuclear weapon. Change in the nature of warfare can also arise from major shifts in politicaleconomic-societal structures, such as the rise of the nation-State or industrialization.1 When the resultant shifts, whatever their cause, prove fundamental, a ‘‘revolution in military affairs’’ (RMA) occurs. Many argue that the global community is in the midst of an RMA today, a revolution generated by both technology and a dramatically altered geopolitical environment.2 }2 RMAs encompass far more than simply strategic and tactical concerns. They often signal dramatic turns in the effects of warfare on civilians and their property. During the Second World War, as an example, each side directed aerial bombardment at their opponent’s civilian population, usually with horrendous humanitarian consequences.3 It was only the RMA wrought by aircraft that made possible the targeting of civilians at such a distance and with such effect. Perhaps more consequential still in terms of placing civilians at risk was the RMA spawned by the advent of nuclear weaponry.4 At the height of the Cold-War, entire populations were held hostage to the threat of counter-value targeting.5 Even though the risk of massive nuclear exchanges has dissipated, the continued threat they pose to the global populace has led the International Court of Justice to recently declare that the use of nuclear weapons is contrary to the principles

1

Colin Gray has cited seven ‘‘historical transformations of warfare’’ since the fall of Rome: (1) fifth century cavalry, which ‘‘ushered in a long period of advantage for soldiers who could fight on horseback’’; (2) the military revolution of the sixteenth and seventeenth centuries which ‘‘was led by the adoption of firearms for siege and open warfare’’; (3) the ‘‘Nation in Arms,’’ a ‘‘concept of popular warfare, increasingly armed and sustained by industrially and agriculturally modern states’’; (5) mechanized warfare, signaled in 1916 by use of the tank in the Battle of the Somme and large scale aerial battles over Verdun; (6) nuclear warfare; and (7) information warfare. Gray 1996, p. 297; see also Cohen 1996, at 37 (discussing how technology has engineered a revolution in military affairs). 2 On the ‘‘revolution in military affairs,’’ see Secretary of Defense 1998, Chap. 13; Drew 1987, at 21; Fitzsimonds 1995, at 30; Goure 1993, at 175; Krepinevich 1995; McKenzie 1995, at 15; Shelat 1994, at 52. 3 For instance, approximately one million German civilians were killed or wounded by bomber attacks. The attacks also destroyed one-fifth of German homes and rendered 7.5 million people homeless. See Harmon 1991, p. 3. 4 For a discussion of the nuclear RMA, see Libicki 1996. 5 Counter-value targeting is directed against cities and industrial areas; the premise is that one targets that which the opponent values most. Counter-force targeting, by contrast, is the targeting of the enemy’s military, most commonly his strategic assets (such as an intercontinental missile force or strategic bomber bases).

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of humanitarian law except, perhaps, in ‘‘extreme circumstances of self-defense, in which [the State’s] very survival would be at stake.6 }3 The protection of civilians and civilian objects during armed conflict is a core purpose of humanitarian law, a branch of international law also known as the law of armed conflict and the law of war. It applies in situations of armed conflict, whether that conflict occurs during a solely internal conflagration or crosses geopolitical borders. Although, humanitarian law has traditionally had its greatest impact in the latter case, there has been increasing normative attention paid to the case of internal armed conflict.7 Humanitarian law does not apply in situations not amounting to armed conflict, such as riots, strikes, demonstrations, isolated acts of violence, or traditional criminal activity, even if military forces are employed to address them. In such cases, domestic and international human rights law tempers the violence.8 }4 There are two complementary components of the international law governing armed conflict, the jus ad bellum and the jus in bello. The former sets forth the criteria for the use of force as an instrument of national policy, asking when a State may use force. The jus in bello, by contrast, addresses how force may be used in an armed conflict, regardless of the propriety of the decision to resort to it. Two primary purposes underlie the jus in bello. The first is a desire to ratchet down the level of violence that occurs in armed conflict, a goal expressed most clearly in instruments that prohibit use of particular weapons9 or forbid the creation of

6 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, para 97, reprinted in 35 I.L.M. 809, 830 (July 8, 1996). The Court did not address the use of the weapons in belligerent reprisal, i.e. an unlawful act in response to a prior unlawful act, which is designed to force the opposing belligerent to desist in its unlawful conduct. On the case, see Falk 1997; Turner 1998; Schmitt 1998, at 91. 7 Internal armed conflict is governed by Common Article III to the four 1949 Geneva Conventions and Protocol II Additional to the Geneva Conventions. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed forces in the Field, August 12, 1949, Article 3, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, August 12, 1949, Article 3, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, August 12,1949, Article 3, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, Article 3, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter ‘‘Geneva Convention IV’’; Protocol Additional to the Geneva Conventions of August 12,1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8,1977, U.N. Doc. A/32/144, Annex II (1977), reprinted in 16 I.L.M. 1442 (1977). 8 There is ‘‘bleed over’’ because human rights law, particularly its non-derogable components, can apply during periods of armed conflict. 9 See, e.g. Final Act of the United Nations Conference on Prohibitions or Restrictions of the Use of Certain Conventional Weapons, October 10, 1980, 1342 U.N.T.S. 7, reprinted in 19 I.L.M. 1523 (1980).

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unnecessary suffering.10 Restrictions responsive to this objective are usually framed in terms of limits on ‘‘methods or means’’ of warfare and over time have been labeled ‘‘Hague Law.’’11 The second purpose of the jus in bello is to shield those who are not directly participating in the conflict from its effects. Classic examples are the limitations on targeting civilians and civilian objects, the protection of medical personnel and facilities, and norms regarding the treatment of prisoners of war. Restrictions emanating from this goal tend to be framed in terms of the protected person or object at issue and are colloquially know as ‘‘Geneva Law.’’ }5 Because evolution in the conduct of warfare affects the individuals and objects which humanitarian law seeks to shelter, it is not surprising that law has proven responsive, both proactively and reactively, to warfare’s changing nature.12 In the last century alone, advances in humanitarian law have tracked major conflicts with great regularity. The Geneva Convention of 1906 and the Hague Conventions of 1907 followed closely on the heels of the 1905 Russo-Japanese War. World War I, in great part, served as the impetus for the 1925 Gas Protocol and the 1929 Geneva Convention. The enormous devastation of the Second World War led to humanitarian law’s greatest leap forward in the form of the four 1949 Geneva Conventions, as well as the 1954 Cultural Property Convention. In the aftermath of World War II, bipolarity and wars of national liberation dominated inter-State conflict, while new technologies and sensibilities led to heightened concerns over the methods and means of warfare. The Additional Protocols to the Geneva Conventions, Environmental Modification Convention, Biological Weapons Convention, Conventional Weapons Convention, and Landmines

10

Among the first formal expressions of the principle was the St. Petersburg Declaration of 1868, which provided that ‘‘the only legitimate object which states should endeavor to accomplish in war is to weaken the military force of the enemy,’’ and that ‘‘this object would be exceeded by employment of arms which use aggravate the sufferings of disabled men, or render their death inevitable.’’ Declaration of St. Petersburg, 1868, reprinted in Official Documents, 1 AM. J. INTL L 95 (Supp. 1907). 11 The designation ‘‘Geneva Law’’ refers to that portion of the law of armed conflict addressing protected classes of persons: civilians, prisoners of war, the sick or shipwrecked, and medical personnel. It is distinguished from ‘‘Hague Law,’’ which governs methods and means of combat, occupation, and neutrality. For a discussion of the international instruments which fall into each category, and of those which display elements of both, see Demulinen 1987, pp. 3–4. 12 Proactive efforts seek to head off negative consequences before they occur. For instance, Protocol IV of the Conventional Weapons Convention prohibited the use of permanently blinding lasers before they were fielded by any armed force. See Additional Protocol to the Convention on the Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Protocol on Blinding Laser Weapons (Protocol IV), October 13, 1995, 35 I.L.M. 1218 (1996). By contrast, most of humanitarian law is reactive; the best example is the establishment of the International Committee of the Red Cross (ICRC) following Henri Dunant’s account of the bloody Battle of Solferino during the Italian War of Unification. See Dunant 1862.

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Convention resulted.13 So too did numerous arms control treaties designed to limit the testing, possession, and spread of nuclear weapons, the unprecedented power of which had been so dramatically illustrated at Nagasaki and Hiroshima.14 }6 The symbiosis between change, war, and law lends itself to reflection on normative futures. Through projections about the nature of future war, it is possible to draw tentative conclusions about those megatrends therein that might place existing law under greater stress, strengthen its impact, or move it in new directions. Of course, predictive endeavors in the soft sciences are tentative, and should cause some trepidation in those who embark on them.15 This is certainly true in the case of predicting the face of future war or, even more presumptuously, speculating on what future war portends for global prescriptive norms. Nevertheless, if we are to affect the vector that evolving law is to take, the effort must be made to grasp the future and proactively respond to it. }7 This essay undertakes that task vis-à-vis what can fairly be characterized as the pith of humanitarian law, those prescriptive norms of the jus in bello mandating discrimination between civilians (and their property) and legitimate targets.16 It begins with an analysis of the current state of the principle of discrimination. Once this context has been set forth, the essay will turn to a description of projected aspects of warfare in the first half of the next century, which some characterize as an RMA, most likely to stress, strengthen, or impel change in the concept of discrimination. Specifically, suggestions will be offered on how possible changes may affect the existing normative milieu.17 Because most such aspects will be driven by changes in US military strategies, tactics, and capabilities, this discussion

13

Each of the aforementioned instruments may be found at the ICRC’s website: www.icrc.org/unicc/ihl_eng.nsf/web?OpenNavigator. Except for the Landmines Convention, they are also reprinted in Schindler and Taman 1988, at 301, 53,115, 325, 373, 745, 621, 163, 137, and 179, respectively. 14 See, e.g., Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, August 5,1963,14 U.S.T. 1313, 480 U.N.T.S. 43; Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco), February 14, 1967, 634 U.N.T.S. 281, 6 I.L.M. 521 (1967); Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161; Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, February 11, 1971, 23 U.S.T. 701,10 I.L.M. 145 (1971). 15 The range of variables that will determine the future are vast. For instance, which States are likely to be core adversaries in the next century? What types of conflicts will predominate? How effective will the ‘‘revitalized’’ United Nations system be? Which political, religious, and ethnic forces will prove most powerful? Indeed, even technological predictions are suspect. See Brody 1991, at 39. For an extremely interesting effort to identify current trends relevant to the use of force, see D’Amato 1998 Megatrends in the Use of Force, in The Law of Armed Conflict: Into The Next Millennium 1. 16 This principle most clearly expresses humanitarian law’s balancing of State-centric interests in resorting to force against the more broadly based human interest in shielding non-participants from the effects of what is, at best, an unfortunate necessity. 17 For discussion of implementation in future conflict, see Doswald-Beck 1998, at 39; and Levie 1998, at 311.

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will necessarily take on a US-centric tenor.18 Receiving particular attention will be the expectation that States will not share equally in the revolution, as some are not financially or technologically capable of participating, and the particularly insidious normative dynamic this ‘‘have/have-not’’ dichotomy may create. Finally, to the extent possible in such a speculative undertaking, several tentative suggestions will be offered on how to soften the impact of any potentially negative trends.

4.2 The Principle of Discrimination }8 The principle of discrimination is bifurcated.19 On the one hand, it limits the use of weapons that are by nature indiscriminate, that is, incapable of discriminating between lawful (combatants and military objectives) and unlawful (noncombatants and civilian objects) targets. Most often, the prohibition is expressed in terms of the ability to aim the weapon in question. For instance, a long-range missile with no, or only a rudimentary, guidance system would be objectionable because it is too indiscriminate. So too would biological weapons that spread contagious diseases, for such weapons are incapable of afflicting only combatants and difficult to control.20 }9 By contrast, the second facet of the principle precludes indiscriminate use of weapons, regardless of their innate ability to discriminate.21 The SCUD missiles launched by the Iraqis in the 1990–91 Persian Gulf War aptly illustrate the difference. SCUDS are not inherently indiscriminate. For example, if employed in the vast expanses of the desert against troops, military equipment, or bases far removed from population centers, little danger of random destruction of protected persons or objects exists. However, Iraqi SCUD attacks against Israeli and Saudi cities (the issue of use against a non belligerent State aside) clearly constituted

18

Though the RMA certainly will not be limited to the US, most core participants are States traditionally aligned with the US. For instance, a disproportionate share of the most technologically advanced militaries are NATO members. 19 For a comprehensive review of the principle, see generally Rosenblad 1979. 20 Protocol I Additional to the Geneva Conventions expresses the prohibition thusly: Indiscriminate attacks are..(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflict, June 8,1977,14, Article 51.4(1,-c), U.N. Doc. A/32/144, Annex I (1977), reprinted in 16 I.L.M. 1391, 1413 (1977) (hereinafter) ‘‘Additional Protocol 1’’1. Unguided missiles exemplify the former, biological weapons the latter. 21 The provision cited in the previous footnote incorporates this prohibition as attacks which ‘‘are not directed at a specific military objective….’’ Id., Article 51.4(a).

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indiscriminate use,22 for whatever the actual intent of the Iraqis may have been, the likelihood of harming lawful targets was far outweighed by that of striking protected persons or objects. }10 This latter aspect of discrimination itself consists of three components— distinction, proportionality, and minimizing collateral damage and incidental injury.23 Each is found in customary law and codified in Additional Protocol I to the Geneva Conventions. Although certain countries, most notably the US, have failed to ratify the Protocol, they generally concur that its core provisions on discrimination express customary principles of international law.24 }11 Distinction prohibits direct attacks on civilians or civilian objects. Article 48 of the Protocol expresses the basic rule that Parties to a conflict must ‘‘distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives.’’25 Military objectives are ‘‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’’26 }12 This seemingly straightforward principle often proves difficult to apply in practice.27 The dilemma lies in the extent of nexus required between the object to be attacked and the military operation. In others words, the subjectivity inherent in the terms ‘‘effective’’ and ‘‘definite’’ invites disparate interpretation. Some entities, such as the International Committee of the Red Cross (ICRC), define the concepts narrowly. In the ICRC’s Commentary on the Protocol, effective contribution 22

US Department of Defense 1992, at 621–22, reprinted in 31 I.L.M. 612 (1992). The typology of law of war principles varies. For instance, the US Air Force employs the categories of military necessity, humanity, and chivalry, with proportionality as an element of necessity, whereas the US Navy uses necessity, humanity and chivalry. In substantive effect, though, there is no real difference between the typologies. The law is the same; only the verbiage differs. Cf. Department of the Air Force, International Law-The Conduct of Armed Conflict And Air Operations (AF Pamphlet 110-31,1976), at 1-5-1-6, with US Navy/Mapjne Corps/Coast Guard, The Commender’s Handbook on The Law of Naval Operations (NWP 1-14 M, MCWP 52.1, COMDTPUB P5800.7), 5.1 (1995). This chapter adopts the typology of discrimination set forth in Greenwood 1998, at 199–202. 24 Unofficial, but probative compilations of the US’ views on the Additional Protocol I by then State Department attorneys can be found in: Matheson 1987; Sofaer 1988. 25 Additional Protocol I, supra note 20, Article 48. The Commentary on the Protocol, citing the St. Petersburg Declaration, includes members of the armed forces in the term ‘‘military objectives.’’ Sandoz et al. 1987, at 635. The prohibition is also expressed in Article 51.2 (‘‘The civilian population as such, as well as individual civilians, shall not be the object of attack.’’) and Article 522 (‘‘Attacks shall be limited to strictly military objectives.’’). See Additional Protocol I, supra note 20, Articles 51.1, 51.2. 26 Additional Protocol I, supra note 20, Article 52.2. According to the Commentary, the term ‘‘object’’ encompasses combatants. See Sandoz et al. 1987, at 635. 27 The Commentary notes that ‘‘[t]he text of this para certainly constitutes a valuable guide, but it will not always be easy to interpret, particularly for those who have to decide about an attack and on the means and methods to be used.’’ See Id. 23

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includes objects ‘‘directly used by the armed forces’’ (e.g., weapons and equipment), locations of ‘‘special importance for military operations’’ (e.g., bridges), and objects intended for use or being used for military purposes.28 The Commentary interprets the phrase ‘‘definite military advantage’’ to exclude those attacks offering only ‘‘potential or indeterminate advantages.29 Civilians are legally protected from attack unless they take a ‘‘direct part in the hostilities.’’30 The ICRC defines such participation as ‘‘acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.’’31 Doubt as to the character of an object or individual is resolved in favor of finding civilian status.32 }13 Others take a less protective approach to the limitations.33 The US, for example, would include economic facilities that ‘‘indirectly but effectively support and sustain the enemy’s war-fighting capability’’ within the ambit of appropriate targets.34 Similarly, some have cited mission-essential civilians working at a base during hostilities, even though not directly engaging in acts of war, as legitimate targets.35 Thus, while there is general agreement that the Protocol accurately states customary law principles, notable disagreement persists over exactly what those standards are. }14 The second component of the prohibition on indiscriminate use is the principle of proportionality, codified in Articles 51 and 57 of the Protocol.36 Proportionality enjoins attacks which ‘‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’’37 As with Article 48, terminological imprecision, specifically as to the phrase ‘‘concrete and direct,’’ invites subjective interpretation and 28

Id. at 636 (emphasis added). Id. (emphasis added). 30 Additional Protocol I, supra note 20, Article 51.3 (emphasis added). 31 Sandoz et al. 1987, at 619. 32 Additional Protocol I, supra note 20, Articles 50.1 (for civilians) and 52.3 (for civilian objects). 33 See, e.g. Parks 1990, pp.113–145. 34 See US Navy/Marine Corps/Coast Guard, supra note 23, at 8.1.1. This assertion is labeled a ‘‘statement of customary international law.’’ The Handbook cites General Counsel, Dep’t of Defense, Ltr. of September 22, 1972, reprinted in 67 Am. J. Int’l L 123 (1973), as the basis for this characterization. 35 See Letter from DAJA-IA [Department of the Army, Judge Advocate, International Affairs] to Counselor for Defense Research and Engineering (Economics), Embassy of the Federal Republic of Germany (January 22, 1988), cited in Parks 1990, at 134 n. 400. 36 Additional Protocol I, supra note 20. On the issue of proportionality generally, see Fenrick 1982, and Gardam 1993. 37 Additional Protocol I, supra note 20, Article 51.5(b). A similar prohibition, in the context of precautions in attack, is found at Id., art 572(a)(iii). Military advantage is evaluated in terms of the entire campaign/war, not simply the immediate advantage from which attacking forces benefit. On this point, see generally Oeter 1995. 29

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application.38 The Commentary indicates that the ‘‘expression… was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.’’39 }15 Proportionality differs from distinction in terms of scienter. Whereas the restriction to military objectives seeks to preclude attacks in which protected persons or object are themselves targets, or where the attack is made with culpable disregard for the civilian consequences, proportionality operates in scenarios in which incidental injury and collateral damage are the foreseeable, albeit undesired, result of attack on a legitimate target. This renders the discrimination decision matrix much more complex. With the first-tier of discrimination analysis, the question is: ‘‘May I lawfully target an object or person?’’ With proportionality, an additional query must occur: ‘‘Even if I conclude that targeting the person or object is unlawful, may I nevertheless knowingly cause him or it injury or damage in my attack on a legitimate objective?’’ }16 When performing proportionality calculations, the actor must not only struggle with issues of inclusiveness (what are the concrete and direct consequences?), but he must also conduct a difficult jurisprudential balancing test. Optimally, balancing tests compare like values. However, proportionality calculations are heterogeneous, because dissimilar value genre–military and humanitarian–are being weighed against each other. How, for example, does one objectively calculate the relative weight of an aircraft, tank, ship, or vantage point in terms of human casualties? }17 Further compounding the elusiveness of definitive proportionality calculations is the multiplicity of ‘‘valuation paradigms’’ that affect the weight accorded particular military or humanitarian occurrences.40 Context often determines value. For example, destroying command, control, and communications (C3) facilities in circumstances in which the outcome of a conflict is uncertain is essential to operating within an opponent’s decision loop. Destroying these assets as efforts are underway to negotiate termination of hostilities may, by contrast, prove counterproductive. }18 Valuation paradigms may also be experientially determined. On an immediate individual basis, of course, there is no distinction in the value placed on life by different societies. It would be absurd, for instance, to suggest that a Belgian valued the life of a loved one any more or less than a Somali. Yet, in some societies, death, poverty, and deprivation tragically are so widespread that their 38

Indeed, the ICRC Commentary notes that ‘‘the criticism [in the Diplomatic Conference and thereafter] was directed particularly at the imprecise wording and terminology…. Such criticisms are justified, at least to some extent. Putting these provisions [paras 4 and 5] into practice… will require complete good faith on the part of belligerents, as well as the desire to conform with the general principle of respect for the civilian population.’’ Sandoz et al. 1987, at 625. 39 Id. at 684. 40 The issue of valuation paradigms in the context of environmental damage during armed conflict is explored more fully in Schmitt 1999b, at 25.

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population can become desensitized to death in the more general sense. In much the same way that a doctor becomes less personally affected by death over time, or a criminal defense attorney learns to react somewhat impersonally to the crimes of her client, those who have the misfortune to live amongst death-filled circumstances may become inured to death when it is not personally relevant. This notion flies in the face of the objective valuation of life sought by humanitarian law, but represents an unfortunate reality that shades proportionality calculations. Among makers of proportionality calculations, therefore, the value attributed to the human suffering caused by a military operation may vary widely with social or cultural background. }19 Conceptually determined valuation paradigms are yet a third complicating factor. As an example, there is growing recognition of the need to protect the environment during armed conflict. However, proportionality calculations made in the attempt to do so will be determined in great part by whether one values the environment in and of itself (intrinsic valuation), or in terms of what it offers humankind (anthropocentric valuation).41 Lastly, valuation paradigms may be temporally determined, that is, evolve over time. Again, using the environment as an example, fifty years ago there was hardly a whimper as war wrought horrendous environmental consequences. Today, military leaders and policy-makers increasingly evidence environmental consciousness by factoring environmental damage into their proportionality calculations.42 }20 The final component of discrimination is the requirement to select the method or means of attack likely to cause the least collateral damage or incidental injury, all other things being equal, relative to the military advantage obtained. Whereas the first two components of discrimination focused on whether a target could be struck, this requirement, codified in Article 57 of the Protocol,43 disallows injury or damage that the attacker can reasonably avoid. Consider an attack on a command and control facility in a population center. Obviously, the center is a legitimate target. Additionally, though civilian casualties and damage are likely to result from a proposed attack by aircraft employing unguided bombs, the anticipated extent of the damage and injury is clearly outweighed by the military advantage that will inure to the attacker. However, if guided munitions would lessen the expected loss and damage without increasing the risk to the aircrew or decreasing the expected damage to the target, and the guided munitions are readily available, then the attacking force should employ them.

41

This theme is developed in Schmitt 1997. An excellent example of the military’s concern with environmental damage was the 1995 international conference on the topic sponsored by the US Naval War College. The proceedings of that conference are published in Grunawalt et al. 1996. 43 Additional Protocol I, supra note 20, Article 57.2(a)(ii) (‘‘With respect to attacks, the following precautions shall be taken… take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects….’’). 42

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4.3 The Possible Impact of Future War }21 As noted, predictive efforts are inherently replete with uncertainty. Yet, certain possible, or even likely, trends in military affairs can be identified based on technological advances, geopolitical events, and logical shifts in strategy and tactics. Together, they suggest the presence of an RMA for the new millennium. Moreover, they will surely influence the existing understanding of the principle of discrimination. What follows are predictions about the possible future changes in warfare and the context in which it occurs, together with their potential consequences for the principle of discrimination.44

4.3.1 Accentuation of Global Divisibility }22 There are significant forces at work that contain within them the potential for sharpening global division. In particular, the gap between the developed and lesser developed States may widen as advantaged States continue to leverage their comparative economic and technological advantages to control increasing shares of the global economy.45 Their relative ability to do so will grow with the swelling importance of technologically intense sectors of the market, such as information management.46 }23 Today, economic strength translates into potential military strength to a degree that is perhaps unprecedented in history. Most notably, the military budgets 44

Much of the analysis offered herein draws on Joint Chiefs Of Staff 1997. The principle of discrimination will evolve in the face of changes in the nature of warfare, for, much as water seeks a constant level, law inevitably endeavors to fill normative lacunae or dispense with contextually irrelevant or unresponsive standards. 45 Statistical trends in long-term development are set forth at World Bank, World Development Indicators 1998 (CD-Rom), tbl. 1.4. While the disparities in annual average percentage of growth are not huge, since the developed States start with a much larger economy, the percentages translate into significant differences in actual growth. A particular dilemma is that as the comparative disadvantages of the ‘‘have-nots’’ grow, these States are ever more aware of their status due to the spread of mass communications in lesser developed States. This awareness, and the inflated expectations that are likely to result therefrom, can be a source of instability. Interestingly, though the relative gap may widen, the number of ‘‘leaves’’ may increase in the twenty-first century due to the diffusion of advanced technology. One possible danger of this situation is that more States will have the economic and technological wherewithal to develop indigenous weapons production capabilities, thereby exacerbating the problem of weapons proliferation. For a discussion of the proliferation threat, see Office Of The Secretary Of Defense 1996. 46 For data illustrating differences in the distribution of the gross world product, see generally United Nations 1993. Between 1960 and 1994, the per capita income disparity between the richest and poorest fifths of the world’s nations grew from 30 to 1, to 78 to I. The problem may continue to increase because many lesser-developed countries have a birth rate that outpaces their economic growth. See Sinding 1999, at 8.

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of the US and its closest allies dwarf those of most of the rest of the world. For instance, in 1997 the US spent $259 billion on defense, over a third of the world’s total defense expenditures, and five times that of the number two defense spender, Japan. Indeed, US defense expenditures exceed those of the next eight spenders combined. Perhaps more determinative with regard to future war is the fact that the US spent seven times more money on defense-related research and development than its next closest competitor, France.47 Such disparities have practical consequences. }24 As an example, consider aircraft carriers. In 1998, only nine States possessed these dominant naval warships.48 The US, with the largest economy, had twelve, more than the remainder of the world combined.49 Similarly, consider the US Air Force’s new Air Expeditionary Force (AEF) concept. The Air Force will build ten deployable packages of 175 aircraft and 2,600 support troops. Each will be capable of deploying on short notice worldwide for missions ranging from combat to disaster relief.50 Just one would be able to outfight the air forces of many nations. }25 Conclusions as to the future relationship between economic wherewithal and military strength must be carefully drawn. Most significant are issues of quantity v. quality. In the not too distant past, defense spending roughly tracked quantitative relationships between militaries. Thus, the more a country spent on defense, the larger its armed forces. This is changing. Although the US spends a far greater amount on defense than any potential competitor, it has only the third largest military.51 The reason is simple: high technology weaponry is expensive, while personnel, particularly in lesser developed countries, are cheap. As an example, the cost estimate of the Army’s Theater High Altitude Area Defense (THAAD) system, which is being developed to guard against missile attacks, is 14 billion dollars.52 To place this figure in context, the projected cost of this single US system roughly equals or exceeds the defense budgets of China, which has the largest military in the world, and such technologically advanced States as Canada and Israel.53

47

See Economist, June 20, 1998, at 120, tbl. In 1997, the top ten defense spenders were: US, Japan, France, Germany, Britain, Russia, Italy, Saudi Arabia, South Korea, and Brazil. 48 US, France, Italy, Spain, United Kingdom, Russia, India, Thailand, and Brazil. See generally The International Institute For Strategic Studies 1997. 49 See Id. at 20. 50 Described by Major General Dennis Gray, ANG (visited April 15, 1999) aflsa.jag.af.mil/ GROUPS/NATIONAL_GUARD/ANG/AEFGray.html. 51 See The International Institute For Strategic Studies 1997, at 291–97, tbl. 53 (current as of 1996 and excluding reservists or paramilitary forces). 52 See Graham 1998a, at 4. 53 Figures for national military expenditures are available on-line. See SIPRI Military Expenditure Database (visited April 15,1999) http://www.sipri.se/projects/Milex/Introduction. htrnl. The defense budget calculation for the Chinese military is based on the officially reported budget, but in fact, funds available to the Chinese military exceed this figure.

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}26 The gap between States in ability to field new military technologies must surely expand as technology costs rise in relative terms. Aircraft represent an excellent example. Tomorrow’s main-line US fighter will be the F-22 Raptor. Produced by Lockheed-Martin, the proposed package of 442 aircraft is expected to cost $71.6 billion.54 What the future may hold, then, is a trend towards efforts by developed States, faced with continuing demands to reduce the size of their militaries, to leverage their comparative ‘economic and technological advantages by fielding high-tech weaponry in compensation for numerical weakness. }27 The US has recognized these advantages in Joint Vision 2010, an official document that sets forth in broad terms how it intends to fight in the twenty-first century.55 This publication describes the goal of ‘‘full spectrum dominance,’’ i.e., the ability to dominate warfare in any environment and at any level of conflict, from military operations other than war to large scale international armed conflict.56 To achieve this goal, the US will take advantage of technological innovations and information superiority to out-maneuver, out-target, and out-defend the opponent. With its military partners, it will enjoy greater situational awareness of the battlefield and be capable of reacting to threats and opportunities thereon more quickly and more definitively than the enemy.57 }28 Warfare along these lines is asymmetrical in that the opposing sides approach the battlefield from very different perspectives, perspectives which are in great part the product of economic and military disparity between the ‘‘haves’’ and ‘‘have-nots’’ (or at least, ‘‘have-lesses’’).58 The former group is illustrated by States such as the US, Canada, most western European countries, Japan, and, in light of its military wherewithal and potential, possibly China; the latter group would include lesser and undeveloped States such as the bulk of those in Africa. If the gap between the ‘‘haves’’ and ‘‘have-nots’’ continues to widen, warfare will become increasingly asymmetrical as technologically advanced States play to their strengths to defeat numerically superior forces.59 And, as demonstrated in the 1990–91 Persian Gulf War, the obverse is unlikely: asymmetry in the form of sheer numbers is unlikely to offset technological inferiority. Thus, technologically impaired forces must seek low-cost, low-tech methods of asymmetrical warfare. In terms of the principle of discrimination, the risks posed by asymmetry are dangerous.

54

See US Government Accounting Office 1995. US Joint Chiefs of Staff, Joint Vision 2010 (1996) [hereinafter Joint Vision 2010] (also available at http://www.dtic.mil/doctrine/jv2010/jv2010.pd1). Each military service in the US has published a complementary service-specific vision: US Navy 1994; US Army 1996; US Air Force 1996. 56 See The concept of ‘‘full spectrum dominance’’ is set forth in Joint Vision 2010, esp. 20–23; Joint Chiefs Of Staff 1997, esp. 50–51.55, at 25–26. 57 See id. at 20–23; Joint Chiefs of Staff 1997, at 50–51. 58 The US specifically cites asymmetric challenges as one of four national security threat categories. The others are regional dangers, transnational dangers, and wild cards (unanticipated threats). See White House 1997. 59 On the issue of leveraging technology to compensate for size, see generally Cordesman 1992. 55

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}29 Recall first that discrimination prohibits the use of indiscriminate weapons. Two categories of low-cost, low-tech weaponry, which could be used with great effect against better equipped forces, are chemicals and biologicals. The core reason chemicals and biologicals are prohibited is that they are inherently indiscriminate; their dissemination is subject to such unpredictable influences as weather or the travel patterns of those afflicted. Moreover, the capability to use them in a discriminatory fashion depends on the delivery system’s complexity, the ability of the user State to develop non-persistent strains of toxins, and the scientific savvy of those employing them. Unfortunately, the ‘‘haves/have-nots’’ premise suggests that those States least likely to possess such attributes are the very ones most likely to resort to this non-discriminatory form of warfare. }30 All of the potential adversaries and allies of the US in the Middle East are developing chemical and/or biological warfare capability.60 As a result of the 1993 Chemical Weapons Convention61 and the 1972 Biological Weapons Convention,62 most of the developed States against which they might be used have either destroyed or are destroying their chemical and biological weapons arsenals.63 The consequent inability of developed States to respond in kind provides a significant incentive for lesser equipped militaries to resort to such weapons. Perhaps the only credible deterrent against their doing so (aside from any likelihood that the State employing them would nevertheless lose the conflict) is the threat of nuclear retaliation, a threat which proved effective during the Gulf War.64 60

The Institute for National Strategic Studies has noted the following capabilities in the Middle East: Algeria (infrastructure for the production of chemical weapons, base of experts for biological weapon production); Libya (production of chemical weapons, possible research on biological weapons); Egypt (production of chemical weapons, base of experts for biological weapon production); Syria (production of chemical weapons, possible production of biological weapons); Iraq (infrastructure for the production of chemical weapons if decision is made to produce, infrastructure for the production of biological weapons); Iran (production of chemical weapons, possible production of biological weapons); Jordan (base of experts for chemical weapons production, technical base for biological weapons production); Israel (possible production of chemical weapons, infrastructure for production of biological weapons if decision is made to produce). See Institute for National Strategic Studies 1996, at 202. 61 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, January 13, 1993, U.N. Doc. CD/CW/WP.400/Rev. 1, reprinted in 32 I.L.M. 800 (1993) (hereinafter ‘‘Convention on Chemical Weapons’’). 62 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature April 10, 1972, U.N. Doc. A/RES/2826, reprinted in 11 I.L.M. 309 (1972). 63 Among the developed States that have ratified, acceded, or succeeded to the Biological Weapons Convention as of August 1998 are France, Germany, Japan, Russia, United Kingdom, and US. Iraq is not a party, though it is a signatory. Each of these is also a party to the Chemical Weapons Convention, while, again, Iraq is not. 64 Judge Schwebel of the International Court of Justice discusses this episode in his dissenting opinion in the Nuclear Weapons Case. See Nuclear Weapons Case, supra note 6, Dissenting Opinion of Judge Schwebel, at 11; see also Institute for National Strategic Studies 1996, at 203. The problem of countering weapons of mass destruction has drawn attention in military circles. See, e.g. Chandler 1998.

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The dilemma is that the use of nuclear weapons is itself under normative attack, the most recent salvo being the 1996 Advisory Opinion of the International Court of Justice mentioned above.65 }31 Disparity also provides an incentive for ‘‘have-nots’’ to define the concept of military objective broadly. If they cannot hope to match their opponent on the battlefield, they must look elsewhere for targets. Since economic facilities undergird the ‘‘haves’’ superiority, these facilities will become particularly attractive targets. For instance, the notion of attacking financial entities, such as a stock market or financial system, readily surfaces in discussions of information warfare.66 These are not military objectives under the present humanitarian law. However, nations outclassed on the battlefield certainly have an incentive for viewing them as such, regardless of the narrower approach advocated by entities such as the ICRC. }32 Much more frightening is the prospect that relative disadvantage will drive the ‘‘have-nots’’ to abandon the principle of discrimination altogether. If a State cannot hope to win on the battlefield, then perhaps it will elect to carry the battle beyond it. After all, this is precisely what terrorists do. The State-sponsored terrorism witnessed over the past decades is but a step away from State terrorism, a fact well-illustrated by the Iraqi plot to kill former President Bush in 1993. This propensity may even become prevalent in conventional warfare. Facing an overwhelmingly dominant force during the Gulf War, the Iraqis chose to target Israeli cities, classic forbidden targets even if Israel had been a belligerent, in an effort to splinter the coalition it faced. Despite the mandates of humanitarian law, the incentive to alter the cost-benefit calculations of an opponent by targeting its civilians and civilian property, thereby violating the principle of distinction, increases in proportion to one’s own military disadvantage. }33 Disparity also aggravates the application of the proportionality principle by distorting its various valuation paradigms. In the first place, the mere fact that one faces significant disadvantages creates a context very different from that in which a more technologically sophisticated opponent operates. Because of the disadvantages, the calculation of military advantage likely to result from an operation will be greater, for the issue is not the objective value of a target, but rather the target’s subjective value to the attacker. To an attacker facing impending defeat, the destruction of any of the enemy’s capability is invaluable; to one certain of victory, there may be very little value added in the destruction of further targets, at least relative to the likelihood of civilian loss. Even the destruction of valid targets with negligible civilian loss when victory is at hand can draw international condemnation, as demonstrated by the criticism over the ‘‘Highway of Death’’ incident during the Gulf War.67 Thus, military disadvantage may serve to ‘‘exaggerate’’ military advantage calculations at the expense of avoiding civilian harm.

65

See Nuclear Weapons Case, supra note 6. On information warfare in an ad bellum context, see Schmitt 1999a. 67 A concise legal analysis of this incident is offered by Professor Francoise Hampson in Hampson 1992, pp. 53–54. 66

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}34 Similarly, it is reasonable to conclude that two adversaries at dearly distinguishable stages of development may draw differing conclusions as to what value to assign to civilian objects, and possibly even civilians. Thus, though the opponents may actually be making a calculation at the same time, from the perspective of their development as a modern State, they operate within divergent valuation paradigms. This phenomenon is evident; for example, in the increased casualty aversion of more developed countries compared to lesser-developed States.68 Whether civilian or military casualties are involved, anecdotal evidence suggests that the more developed a country, the less fatalistic its populace. The greater the disparity, then, the further we move away from an objectively determinable proportionality balancing. Regrettably, this situation is self-catalytic: the wider the chasm between competing standards of balance, the greater the likelihood that the side that advances the higher standard will ratchet its calculations downward in response to an opponent’s actions. }35 Beyond the dynamics of relative economic wherewithal and its military consequences, the global community is at risk of fragmentation from other forces. Of particular divisiveness is a growing tendency towards religious and ethnic discord.69 During the Cold-War, such discord was somewhat muted by the umbrella of bipolar competition. Today, however, ethnic and religious violence, both internal and international, has become widespread. Unfortunately, in the passion of morally or ethnically charged violence, humanitarian principles, particularly those requiring discrimination, may be discarded. From Nagoro-Karabakh and Sarajevo to Belfast and the remote villages of Rwanda, internecine conflict in the post Cold-War era has assumed a particularly brutal, and often indiscriminate, visage. }36 The unprecedented willingness of the international community to create war crimes tribunals in the cases of Yugoslavia and Rwanda and to move towards the creation of a permanent International Criminal Court demonstrates the alarm that these tragedies have finally begun to raise. Unfortunately, little reason exists to believe that war crimes will be relegated to the dust bin of history anytime in the near future.

4.3.2 A Blurring of the Lines Between Protected Persons and Objects and Valid Military Targets }37 As was noted in the previous section, the ‘‘haves/have-nots’’ dichotomy may encourage ‘‘have-not’’ States to blur the line between civilians and civilian objects on the one hand, and valid military objectives on the other. This is driven by the 68

The dearest recent example of casualty aversion occurred following the October 1993 shootdown of two US Army helicopters that were involved in operations to capture the Somali military leader, General Aideed. Eighteen US servicemen, along with hundreds of Somalis, perished in the incident. The uproar this incident caused in the US led to the withdrawal of all US troops by March 1994. See Anderson 1995, p. 273. 69 Samuel Huntington has argued that future global discord will be based in culture rather than economics or ideology. See generally Huntington 1993.

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desire to compensate for weakness on the purely military front. However, blurring may also result from a much more subtle phenomenon the militarization of previously protected entities and individuals. }38 Widespread involvement of the citizenry in war can be traced back at least to the nineteenth century. The Napoleonic wars signaled the ‘‘popularization’’ of warfare beyond a select group of professional soldiers, and the Industrial Revolution made possible the arming and equipping of the mass armies first seen on a grand scale during these wars. Success in combat arguably became as dependent on the capability of a State to mobilize its economy to equip huge armies as on the professional acumen of its officer corps. In an unprecedented way, factories, factory workers, and certain other civilian facilities and individuals had a tangible effect on the course of a conflict. That being so, it is not surprising that by the Second World War, belligerents attacked them directly. The appropriateness, or lack thereof, of those attacks informs much of the current debate over the reach of the term ‘‘military objective’’ in Article 48 of Protocol I and, more generally, customary international law. }39 The concept of military objective will remain beleaguered as civilian activities are further militarized, and military activities are increasingly civilianized, especially in technologically advanced States. With regard to the former trend, it is becoming ever more difficult to determine when an object, and the facility that makes it, is military. Because the ‘‘full spectrum dominance’’ heralded by the US necessitates operating within an opponent’s decision loop, a capability relying largely on advanced information technology, this is especially true for developed States.70 The problem is that the technology able to perform these functions differs little, if at all, from that used in the civilian community. How is one to distinguish, as an example, a computer chip manufacturer that sells its chips only to civilian end-users from one that has a number of military contracts?71 Obviously, such quandaries multiply the difficulty of discrimination. }40 Complicating matters is a push to lower costs by purchasing ‘‘off- the-shelf’’ products designed for civilian use, and then adapting them to military purposes. 70

The concept of operating within an opponent’s OODA (observe, orient, decide, act) loop implies being able to make decisions faster and better than an opponent so as to force him to react. Enjoying that capability in the twenty-first century will require advanced computer technology to manipulate and operate next-generation sensors and then quickly sort through the resulting data in search of that information relevant to a particular end-user (a commander, unit, or individual soldier). 71 Former Vice-Chairman of the US Joint Chiefs of Staff, Admiral William Owens has highlighted this trend: Today, the center of technological acceleration in each of these technologies [battlespace awareness, C’I, and precision use of force] lies generally in the commercial, non-defense sectors. Our ability to accelerate the fielding of systems, on which we will base our future military superiority, thus depends on our capacity to tap into developments taking place for the most part outside the existing Department of Defense laboratory and development infrastructure. Owens 1995, at 36, 38.

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If military officers use Microsoft Word as their word processing software of choice, for example, does a Microsoft plant become a valid target? Along these same lines, the military increasingly utilizes civilian facilities and activities in order to minimize costs. Such arrangements range from sharing office space, runways, or port facilities, to using the Internet or pursuing partnerships with commercial space entities and consortiums.72 In the search for savings and efficiencies, such practices dilute the prescriptive effect of the belligerents’ obligations to ‘‘avoid locating military objectives within or near densely populated areas’’ and to ‘‘take the other necessary precautions to protect the civilian population, individual civilians [,] and civilian objects under their control against the dangers resulting from military operations.’’73 At the same time, there will be pressure from those who wish to target such entities and activities to lower the threshold for judging a target lawful. }41 Finally, there is an increased proclivity, again often for fiscal reasons, to contract out many activities which previously were performed by military personnel, and which are integral to the effective conduct of military operations. The US military, for example, has at times contracted out aircraft maintenance, security, transportation of troops and supplies, housing, and even training in basic combat functions. When civilians perform support functions, the line between noncombatants and combatants inevitably blurs. Are civilians who perform these support functions targetable? If so, which functions rise to the requisite level of support to combat operations necessary to render them subject to attack? Even if one accepts the argument that such individuals are targetable, these activities place all civilians at greater risk because of the difficulty an attacking force will have in distinguishing civilian participants from civilian non-participants. In fact, this very concern drew objections to the Protocol I provisions relaxing the requirement that combatants distinguish themselves from the civilian population.74 }42 Clearly, if the trend towards militarizing civilian activities and civilianizing military ones continues, the consequences for the principle of discrimination are grave. There will be measurable pressure to interpret the universe of targetable objects and individuals more liberally than today simply because each side will seek

72

The US Space Command is actively seeking partnerships with commercial entities and consortiums, sometimes multinational in nature, as well as with civilian governmental agencies involved in space operations, such as NASA. Indeed, ‘‘Global Partnership’’ is one of Space Command’s four operational concepts. US Space Command. On the legal issues involved with such activities 1997, see generally Jankowitsch 1992); and Morgan 1994. The implications of this practice are momentous. If a country uses civilian airliners for military purposes during a war, to what extent do the carrier’s aircraft, maintenance facilities, and control centers become lawful targets? What about the regional air traffic control system? Are commercial satellites that provide positioning data to military, commercial, and private aircraft and ships targetable? What about those that provide weather data to both military planners and emergency response organizations? Does the military’s use of the Internet make it a target? 73 Additional Protocol 1, supra note 20, Article 58 (b-c). 74 These objections have come from the US, among others. See 1 US Air Force, Office of the Judge Advocate General, Operations Law Deployment Deskbook, tab 12, para 1.7.6.1 (objecting to the provision).

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to deny its opponent potential advantage. Any such calls for relaxing the criteria for valid targets should be, as discussed infra, resisted. Moreover, as a practical matter the difficulty of determining who and what is, in fact, supporting the military effort will complicate discrimination. Today, the Internet, stock markets, economic infrastructure, and other primarily civilian entities do not constitute lawful targets, regardless of who the attacker is. The tie to direct and concrete military advantage is simply too attenuated. Yet, as integration expands it will prove ever more difficult to determine with any precision the relationship of a potential target to the military effort. Nevertheless, humanitarian principles dictate that any consequent urge to simplify legal criteria by relaxing them should be opposed.

4.3.3 From Battlefield to ‘‘Battlespace’’ }43 In battles past, combat was generally linear. Opposing forces faced each other across fairly distinct, geographically articulable lines. Objects susceptible to being struck, either directly or collaterally, tended to be those closest to the forward edge of the battle area. Civilians were usually absent from the battlefield, either because the battle occurred in relatively unpopulated areas or because they had fled prior to its onset. }44 In the twentieth century, this linearity has diminished severely. Blitzkrieg warfare as practiced by the mechanized German Army in 1939–1940, for instance, was based on maneuver so fluid that the forward edges of battle areas became transitory. Similarly, strategic bombing did away with linearity altogether in the aerial realm. The result of this revolution in speed and reach was that civilians found themselves at growing risk. In many cases, it became difficult to escape the onslaught of combat by simply fleeing the battlefield, because the battlefield moved too quickly and too unpredictably. Furthermore, the ability to apply force beyond the immediate area of military operations rendered the heretofore de facto enforcer of the principle of discrimination–distance–impotent. The novel technologies meant that new, yet still valid, military target sets far beyond the battlefield could be struck, but because they were often located near civilians and civilian objects, the likelihood of collateral damage and incidental injury increased. }45 In twenty-first century warfare, this tendency will be exacerbated manyfold, as ‘‘battlespaces’’—virtual and non-linear loci of combat—replace battlefields. Future wars will involve technologically advanced militaries applying carefully synchronized force from an array of precision platforms against targets identified and located by advanced sensors.75 The question for civilians will be less one of where combat is occurring as when, for there will be few sanctuaries from its effects.

75

See generally Johnson and Libicki 1995.

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}46 Notions of battlespace further complicate application of the principle of discrimination. After all, the humanitarian effect of the ability to strike anywhere and anytime necessarily increases the extent to which civilians and civilian objects are intermingled with military objectives. This intermingling results not from the presence of more civilians and civilian objects in the target area, but rather from the fact that valid targets which could not feasibly be struck in the past now become vulnerable. To the extent that the universe of strikeable targets multiplies, so too does the potential for collateral damage and incidental injuries. This actuality, sans plus, does not complicate the making of proportionality calculations, but it does dramatically increase the frequency with which the most difficult ones (those involving intermingling) will have to be made. It will also require greater attention to the attacker’s obligation to chose that method or means of warfare least likely to cause collateral damage or incidental injury, while still achieving military objectives.

4.3.4 The Advent of Precision Engagement }47 In the next century, the operational concept of ‘‘precision engagement’’ will underlie military tactics and strategy. Set forth in Joint Vision 2010,76 precision engagement ‘‘will consist of a system of systems that enables military forces to locate the objective or target, provide responsive command and control, generate the desired effect, assess [the] level of success; and retain the flexibility to re-engage with precision when required.’’77 Thus, precision takes on new meaning. Rather than being the ability to strike a designated target; it becomes a qualitatively improved holistic combat methodology.78 Two capabilities are key to achieving precision engagement: information dominance, particularly surveillance and reconnaissance, and the ability to apply just the right amount and kind of force to accomplish the objective. Information dominance implies the transparency of an opponent’s actions and intentions, and the concealment of one’s own. Improved and new technologies will enable

76 Precision engagement is one of four key concepts in the enabling of full spectrum dominance, as articulated in Joint Vision 2010. The others are dominant maneuver, ‘‘the multidimensional application of information, engagement, and mobility capabilities to ‘position and employ widely dispersed joint air, land, sea, and space forces’’’; full dimension protection, which will use information technology to better protect US forces; and focused logistics, the ‘‘fusion of information, logistics, and transportation technologies to provide rapid crisis response, to track and shift assets even while en route, and to deliver tailored logistics packages and sustainment directly at the strategic, operational, and tactical levels of operations.’’ Joint Vision 2010, supra note 55, at 20, 23, 24. 77 Id. at 21. 78 See generally Joint Chiefs of Staff 1997, at 51.

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quantum leaps in intelligence gathering, surveillance, and reconnaissance.79 For example, micromachining offers fantastic new possibilities, many of which involve the production of tiny sensors that an adversary may detect only with great difficulty.80 Technology also will promote greater transparency of an enemy even at the level of an individual soldier.81 }48 Data gathering technologies are supplemented by systems that make possible the effective use of that data. Given the capabilities of sensor assets, the mountain of information that will be available to the decision-maker will, in most cases, be unmanageable in its unprocessed form. Therefore, new data processing systems employing artificial intelligence are being developed to rapidly fuse, sort, evaluate and disseminate information in user-friendly form.82 Analogous decision-making

79

Space satellites serve as an apt example. By the early twenty-first century, reconnaissance satellites will offer 24-hour worldwide coverage, with improvable resolution of two to three meters. Even more astonishing, in future wars, satellites may be capable of detecting normal conversations on earth with sound sensor technologies. See Thieret et al. 1996, p. 187. Consider this possible future scenario from one US Air Force study: In the year 2025, sensor collection provides enough data for a virtual 3D model of the [target] to include its composition, internal structure, baseline characteristics, and tendencies…. Sensors determine the building’s exact dimensions and floor plan. They then highlight soft spots. Sensors distinguish between rooms containing biological agents, test equipment, sleeping quarters, and even the snack bar. Target acquisition sensors also construct a baseline, or living archive, of data concerning routine activity and environmental conditions. Examples include the average number of people who enter and exit each day, the number of vehicles in the parking lot, and the level of noise generated by the facility.

Id. at 185–86. Using this information, targeters can determine where to strike the building, with what, and when the building can best be attacked without causing extensive civilian casualties. 80 For instance, some futurists envision minuscule ‘‘robots’’ with optical and communications capabilities, which would be disguised as insects for use in jungles where present day sensors are often ineffective. See Cooper 1996, at 4. Future sensors may be the size of dust mites and seedable by unmanned aerial vehicles, and could be sucked into the air conditioning system of facilities to be monitored. See id. Sensors’ ‘‘senses’’ would not necessarily be limited to sight and hearing. Certain ones might be sensitive to particular chemical make-ups, thus allowing the identification of chemical weapons or metal objects like armor or aircraft. See Thieret et al. 1996, at 187–88. 81 Most notably for the not-too-distant future, the proposed Land Warrior Modular Fighting System will equip soldiers with a helmet-mounted computerized display tied to an improved weapon, thermal sensor for night vision, and an image enhancer. The system will allow the soldier to ‘‘see around corners’’ and transmit data up the chain of command. There are even suggestions that soldiers will have access to eye-sized real time picture map displays to enhance situational awareness. See Pine 1997, at D3; Jezior 1997 (unpublished manuscript on file with the Naval War College Library); see also Infantry System Turns Soldier into High-Tech Urban Warrior, Nat’l Def., April 1997, at 24. 82 An excellent example being developed for the US Navy by Johns Hopkins University is the Force Threat Evaluation and Weapon Assignment System. It will collate data from radar systems aboard the ships of an entire battle group and then fuse it to generate a three-dimensional graphic display of the threat environment for the battle manager. The system will even evaluate threats and suggest which to engage and when. See Waller 1995, at 38, 41.

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enhancement systems will be available at the operational (theater) and strategic levels as well. The real-time nature of these ‘‘C4ISR’’83 technologies will for the first time make planning as events unfold possible. In terms of operations tempo, this is a quantum leap over the present practice of planning in advance of execution or in response to enemy action. }49 Complementing the revolution in information systems are equally impressive advances in weapons capabilities. Inaccurately hailed as the first ‘‘smart’’ war,84 the 1991 Persian Gulf War popularized the capabilities of precision guided munitions. Though the accuracy and effectiveness of smart weapons in that war may have been exaggerated through coverage in the popular media, the weapons of future wars will be more than smart—they will be ‘‘brilliant.’’ Inertial navigation technologies, the incorporation of global positioning data, and other improvements in guidance systems will permit weapons to regularly strike within centimeters of the desired point of impact.85 Accuracy will be further enhanced by improvements in the overall ‘‘weapon system,’’ which consists of the weapon, launcher, and other external components that make the attack possible.86 Not only will technology allow better target identificationand accuracy, but those weapons

83

Command, control, communications, computers, intelligence, surveillance, and reconnaissance. Despite impressive film footage of precision guided munitions (PGMs) being employed during the conflict, the Gulf War was actually dominated by conventionally delivered munitions. Only 8% of the weapons used were precision guided. A General Accounting Office study of 20 major targets found that Coalition forces used at least two laser-guided weapons against each. 20% of the targets were struck with at least six weapons, while 15% were hit by eight or more. The need to strike targets repeatedly is persuasive evidence that such weapons were no panacea. See Capaccio 1997, at 1; see also Geldman 1991, at A-1. Since the Gulf War, the US has invested heavily in precision weaponry. For example, the two US carriers deployed to the Persian Gulf in February 1998 carried with them more smart weapons than all six of the carriers deployed during the war. See Graham 1998b, at A-1, 25. 85 Inertial navigation is dead reckoning performed automatically by a device that continuously integrates acceleration and direction from a known point of departure in order to ascertain location. Its advantage is that it is completely passive and self-contained; therefore, its users are not subject to electronic signal monitoring or electronic countermeasures. Some warheads will actually count walls penetrated to ensure that the warhead explodes within the desired room. This capability is particularly useful in strikes against biological or chemical facilities in which the goal is to destroy toxins without releasing them into the atmosphere. See Matthews 1998, at 6. To place this degree of accuracy in historical perspective, during World War II, one-half of all bombs dropped landed over one mile from their intended target. See All Things Considered (National Public Radio broadcast, February 13, 1998). 86 For instance, combat aircraft today use information provided by on-board sensors or verbal communications with other aircraft, such as the Airborne Warning and Control System (AWACS), or ground controllers. In the not-too-distant future, by contrast, fighters and bombers will have direct access to data gathered by space- and ground-based sensors, unmanned reconnaissance aerial vehicles, and aircraft other than specialized platforms like the AWACS. See Usaf scientific advisory board , p. 11. On the ground, the US Army may field a ‘‘brilliant’’ antiarmor submunition that will be fired by the Army Tactical Missile System. The munitions will use acoustic and infrared sensors to identify a formation of vehicles, single one out for attack, and destroy it. See Owens 1995, at 37. 84

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that strike the target will be more effective in achieving the desired level of destruction or damage.87 }50 Non-lethal weapons technologies will also provide fighting forces with a means more precisely tailored to achieve a desired effect.88 In many ‘‘military operations other than war’’ situations, for example, the use of deadly force may be counterproductive. The prevailing scenario involves crowd control in circumstances where troops are trying to stabilize civil unrest. New non-lethal technologies on the drawing board may offer field commanders less irreversible ways to handle such situations than using traditional armed force.89 }51 In a perfect universe, these advances in information acquisition/dissemination and weapons accuracy/suitability would result in an impressive concentration of precision firepower that could be brought to bear in a transparent and well-understood battlespace against easily identifiable targets. Despite its impressiveness, however, technology contains within it the potential to thicken the

87

Today, a weapon usually destroys through penetration of the target and explosion. This approach will predominate in the next century, but be much improved. Microtechnology will allow weapons to be much smaller, thereby permitting more of them to be carried aboard delivery platforms. See Thieret et al. 1996, at 189. Consider hardened targets. Today they are best attacked with at least a two-thousand pound guided bomb unit; in the future they may be attacked with a 250 lb weapon just as effectively. Moreover, microexplosive technology will make it possible for minute quantities of explosive to destroy a target, further facilitating miniaturization and limiting the collateral damage and incidental injury produced by larger explosions. See Usaf scientific advisory board 1995, at 9–10. 88 The term non-lethal is somewhat controversial because death is possible in the case of many such weapons; it is simply less likely. Therefore, these weapons are increasingly being labeled less-lethal rather than non-lethal. On non-lethal weapons, see generally Duncan 1998; Cook III et al. 1995, at 77; Duncan 1998. 89 Consider acoustic and microwave weapons. The former generate sound frequencies that cause pain and nausea, while the latter cause discomfort or seizure by raising the target’s body temperature. See Pasternak 1997, at 38. Other technologies being considered include sleep agents, ‘‘slick-urns,’’ which coat surfaces with an anti-traction substance that renders them difficult to walk or drive on, and ‘‘stick-urns,’’ a sticky foam that can immobilize individuals without killing them. See Schneider 1997, pp. 9–10, 27. Other potential non-lethals that some have suggested for use against enemy equipment include electromagnetic pulse weapons that produce radio-frequency wavelengths damaging to electrical equipment, see id. at 14, supercaustics and embrittling agents that can be sprayed from aircraft or delivered by shells to corrode or weaken surfaces such as bridges, optical lenses, tires, etc., see id. at 20–22, microbes that eat rubber, silicon, electronics, and oil, see Jezior 1997, at 16, and ‘‘super-glue,’’ an air-dispensable substance that fouls equipment and weapons, see Schneider 1997, at 9–10.

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Clausewitzian fog of war rather than clear it.90 To begin with, new stealth technologies may defeat transparency.91 At a more basic level, information dominance may yield little more than information overload, a situation in which so much information is provided that the decision-maker becomes stressed and confused and begins to make worse decisions than he otherwise would have.92 }52 Perhaps most potentially troublesome is the fact that every information dependency becomes an information vulnerability.93 This fact has fostered the growth of a relatively new form of combat, information warfare. In information warfare, the enemy’s information systems are targeted to deny or distort the information on which he relies. One technique, computer network attack, presents a particular problem for high-tech militaries which depend on computers for everything from deployment planning and intelligence dissemination to transmitting air tasking orders.94 Militaries that train in an information rich environment may be crippled by the disabling of their computer systems. More troubling is the prospect that the information on which they depend could be altered. Using this tactic, the attacker can essentially take control of its opponent’s deliberative

90

The Naval War College’s Mackubin Owens has questioned the current ‘‘obsession’’ with technology. According to Owens, there is a Recrudescence of a McNamara-like worship of technology in some part of the Pentagon, a worship that ignores the principal lesson of military history: as long as war involves humans, no technology can completely eliminate friction, ambiguity and uncertainty, thereby ensuring that a military organization will function at 100% efficiency…. The question is, who is more relevant in the real world: Clausewitz, who observed that ‘‘everything is simple, but the simplest thing is difficult. The difficulties accumulate and the end by producing a kind of friction that is inconceivable unless one has experienced war’’; or those who reject him, explicitly or implicitly, assuming that technology will render friction in war obsolete?

Owens 1996, at 5, 6. For a fascinating account of how a combatant might fight against a technologically superior military, see generally Dunlap CJ Jr 1996, at 22. 91 As an example, the removal of the pilot and cockpit in ‘‘uninhabited combat aerial vehicles’’ may allow novel design features that reduce the radar cross section by a factor of two. See Usaf scientific advisory board 1995, at 8. 92 See DiNardo and Hughes 1995, at 69, 75. 93 See, e.g. Munro 1995, at 24. 94 The US military has over 2.1 million computers and 10,000 local area networks. See Ricks 1997, at 1; B2. Computer network attack can take many forms, most commonly through introduction of a ‘‘virus.’’ For example, ‘‘logic bombs’’ can be transmitted to a computer where they sit idle until activated by a specific event or at a set time. They might be used, for example, to attack such targets as air defense or air traffic control systems. Other techniques include flooding a system with so much data it cannot process it, or the use of ‘‘sniffer’’ programs to gather access codes allowing entry into target systems. In many instances, the attacks may occur without the knowledge of the victim. On the threat posed by information warfare from the US perspective, see Office of The Under Secretary of Defense For Acquisition And Technology 1996, at app. B (Threat Assessment).

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processes. A frightening variant of this scenario is one in which the victim is made to target its own forces or even civilians and civilian targets.95 }53 Despite countervailing trends, the various aspects of precision engagement generally bode very well for implementation of the principle of discrimination. The Gulf War may serve as a preview of things to come. Although only eight percent of the munitions employed in that conflict were precision guided,96 and despite isolated claims to the contrary, the use of advanced information systems, delivery techniques, and improved weaponry led to a dramatic decrease in the extent of civilian casualties and damage to civilian objects relative to the scope and intensity of the campaign.97 Technology made these results possible.98 When compared to urban air attacks of past wars, the Desert Storm bombing effort was astonishingly discriminate. }54 In the future, discrimination capabilities certainly will improve. Collateral damage and incidental injury generally result from the interplay of three factors: uncertainty as to what is being hit, inability to precisely meter the amount of force applied, and the lack of absolute certainty that the target can be hit. The technologies described above will dramatically diminish the effect of each of these limiting factors. Simply put, in the conflict of tomorrow, technologically advanced forces will be able to strike what they want with near one hundred percent

95

Reports of a war game held at National Defense University several years ago portray one hypothetical future war scenario. Set in the year 2000, it involved an OPEC meeting that goes awry when Saudi Arabia opposes Iranian demands for an oil production cutback in order to drive prices up. Iran mobilizes and conducts several attacks on Saudi warships. It also begins to conduct information warfare operations to destabilize the Saudi regime and keep the US and United Kingdom out of the fray. A Saudi refinery is destroyed when computer malfunctions in its control mechanisms cause a fire, a ‘‘logic bomb’’ placed in the computer system running US railways causes a passenger train to derail, computer ‘‘worms’’ begin to corrupt the US military’s classified deployment database, and a ‘‘sniffer’’ disrupts fund transfers in the Bank of England. See Lohr 1996, at Dl. The civilian consequences of these and similar operations are self-evident. 96 See discussion supra note 84. 97 For criticism of the coalition’s actions during the 1991 Gulf War, see generally Human Rights Watch 1991; and Normand and Jochnick 1994. The proceedings of a panel chaired by Professor Oscar Schacter at the 1992 meeting of the American Society of International Law offer a more balanced approach. Panelists included Professors Frits Kalshoven, Francoise Hampson, Yoram Dinstein, Ruth Wedgwood, and Colonel Fred Green. See Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity 1992. The US’ position on the subject is set forth in US Dept of Defense, supra note 22, at 611–17. 98 For instance, in the first night’s attacks against central Baghdad, only highly precise F-117 Nighthawk aircraft and Tomahawk land attack missile (TEAM) cruise missiles were employed in order to minimize collateral damage and incidental injury. While almost 48 key targets in and near Baghdad were struck in the first 24 h of the campaign, direct civilian casualties were minimal. See US Dept of Defense, supra note 22, at 116–18, 177–78.

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accuracy using techniques in which significant collateral damage and incidental injury will be the exception, not the rule.99 }55 Should this prognosis become reality, understandingsss of how to apply the rule of proportionality may shift subtly, but meaningfully. If first-tier collateral damage and incidental injury (i.e., damage and injury directly caused by the kinetic force of the attack) become rarer, it is probable that humanitarian attention will increasingly dwell on subsequent-tier, or reverberating, effects. As an illustration, since electrical grids will be attackable with highly surgical strikes, proportionality analysis in future war may well center on derivative consequences, such as unintended but foreseeable denial of power to medical facilities.100 Given the increase of dual-use technologies and facilities, described above, the risk of subsequent-tier damage and injury may actually increase because of the greater interconnectivity of valid target sets with civilian activities. This is especially true with regard to information warfare. Imagine, for instance, information warfare attacks on railroad switching computers, air traffic control systems, or telephone exchanges. The civilian fallout would be monumental and severe. Of course, reverberating effects were theoretically always calculated when assessing proportionality. However, it is only now that the means exist to limit dramatically direct collateral damage and incidental injury that we are being sensitized to reverberation.101 Improved capabilities inevitably lead to heightened humanitarian expectations. }56 The one exception to the advent of precision engagement is non-lethal weapons. As conceived of today, technologies such as acoustic or microwave weapons are fairly indiscriminate; as ‘‘area’’ weapons, they are difficult to direct with any precision. Of course, their discriminatory capabilities can be expected to improve in the future. Additionally, as in other cases, the issue is discriminatory use rather than discriminatory capability. The real danger is that non-lethals will be used in situations or locations, such as urban settings, that do not permit sufficient discrimination. However, their use might still be both appropriate and proportionate because the lesser lethality of such weapons will compensate for their increased coverage. In other words, proportionality may be measured less in terms of scope than in terms of severity. }57 Paradoxically, precision engagement capabilities have the potential to make discrimination more difficult to achieve. Three possibilities are particularly

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Expectations will shift accordingly. For instance, speaking of his decision to order attacks in August 1998 against a suspected secret chemical plant in Sudan, President Clinton stated that ‘‘I did not want some person who was a nobody to me, but who may have a family to feed and a life to live, and probably had no earthly idea what else was going on there, to die needlessly.’’ Weiner and Myers 1998, at A-1. Thus, highly precise cruise missiles were used to strike the plant at a time when it would not be filled with employees. 100 On these attacks, see Crawford 1997, at 101. 101 The limited criticism of the Gulf War air campaign that has been voiced evidences this growing sensitization, for it was predominately based on allegations that coalition attacks did not pay adequate attention to subsequent-tier effects.

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threatening. The first is that the ability to easily identify and target military assets may encourage the practice of placing them in the vicinity of civilians and civilian objects so as to cause attackers to hesitate lest they cause disproportionate damage or injury. Although the use of civilians or other protected persons as shields violates Geneva Convention IV and Protocol I and constitutes a Grave Breach,102 attackers remain obligated to perform proportionality calculations.103 This fact makes civilian shields appealing when an opponent might otherwise target your assets with great impunity. Saddam Hussein used this tactic with unfortunate regularity. Recall the Iraqi placement of foreign and Kuwaiti hostages at military sites, the dispersal of helicopters to residential areas, placement of surface-to-air missiles in a school located in Kuwait City, basing of fighter aircraft next to the Temple of Ur, and the decision not to evacuate Baghdad despite having practiced just such a civil defense operation.104 As technologies improve even further, and in light of the fact that ‘‘have’’ States will disproportionately possess them, condemnable practices may recur.105 }58 Second, and equally troubling, is the prospect that because proportionality valuation paradigms are conceptually determined, there is a risk that the ‘‘haves’’ will face pressure to readjust their proportionality balance calculations to account for the other side’s malfeasance. This pressure would result from treating humanitarian law as if it were designed to ensure a fair fight rather than protect non-participants from the effect of hostilities, a dangerous trend from the humanitarian perspective. }59 Finally, when facing an adversary that enjoys the capability to render one’s actions transparent, the incentives to engage in perfidy and the disincentives to distinguish oneself from the civilian population swell. The blurring of the line between combatants and non-combatants was discussed earlier. Here, the blurring is intentional, almost a form of camouflage. Although these practices are unlawful,106 the same decisional dynamics set forth above regarding placement will be at

102 See Geneva IV, supra note 7, Articles 29,149; Additional Protocol I, supra note 20, Articles 75.2(c), 85.2. 103 See Additional Protocol I, supra note 20, Article 51.7–8. 104 See US Dept of Defense, supra note 22, at 607–08, 613–15. 105 And, in fact, have. Since the Gulf War, Iraqi citizens have occupied potential targets on multiple occasions to shield the targets against threatened air attacks by the multinational forces still patrolling Iraqi sides. The ability of the Iraqi Air Force or air defense to deter such attacks is minimal; thus, the resort to civilian shields. 106 Perfidious acts are those ‘‘inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under rules of international law applicable in armed conflict, with intent to betray that confidence.’’ Protocol I, supra note 20, Article 37. Typical examples involve misuse of the Red Cross, Red Crescent, or the surrender flag. Such practices are also proscribed by the Annexed Regulations to Hague IV. See Hague Convention IV Respecting the Laws and Customs of War on Land, with Annexed Regulations, October 18, 1907, Article 23(F), reprinted in Schindler and Taman 1988, at 63, 83. The combatant/noncombatant distinction is found in varying formats in Hague Convention IV, id., Article 1; Geneva IV, supra note 7, Article 4A(2); and Additional Protocol I, supra note 20, Article 44.

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play, both as to the attacker and the target forces. In fact, Protocol I has recognized this reality to some extent in its relaxation of the requirement that combatants distinguish themselves. Aware that they will not do so when it would be suicidal, Protocol I now provides that when ‘‘owing to the nature of the hostilities an armed combatant cannot distinguish himself,’’ he need only carry his arms openly during the engagement and be visible to his opponent while deploying in preparation for the launching of the attack.107 Similar pressures to relax standards may well surface in the future as distinguishing oneself becomes ever more foolhardy, at least from the perspective of those facing technologically advanced foes.

4.3.5 Disparate Cognitive Approaches }60 The inherent complexity of the principle of discrimination should by now be apparent. At the most basic level, targeting civilians and civilian objects is prohibited. Additionally, there are certain situations in which all reasonable actors would agree on the proportionality balance. No one would suggest, for example, that capturing a single low-ranking soldier would justify the death of hundreds of civilians. Similarly, the military advantage of destroying a command and control center would seldom be outweighed by damage to an uninhabited building. The complexity emerges when one moves from these extremes along the proportionality continuum toward the center. It is here that dissimilar valuation paradigms clash. Despite the resulting dissonance, however, at this point parties may still agree that they should all be judged by objective standards; they simply disagree as to what those standards should be. }61 Normative relativism began to slip into humanitarian law with the Protocol I, Article 57 prohibition of avoidable damage and injury. Beyond an objective level of requisite discrimination, different States will be subject to different standards based upon their capabilities. There is little serious question that some degree of subjective application is merited. The quandary lies in translating this subjectivity into affirmative actions. Must a State use precision guided munitions if it possesses them?108 Assuming it does, what are the requirements for their use? May it hold them in reserve until the course of the battle becomes clear? To what extent does a State’s ability to replenish its supply of such munitions bear on the appropriate rate of employment? Do States have to acquire them if they have the economic

107 See Additional Protocol I, supra note 20, Article 44.3. As noted supra note 24, the US opposes this provision. According to the Rapporteur, the Additional Protocol I provision exception ‘‘recognized that situations could occur in occupied territory and in wars of national liberation in which a guerrilla fighter could not distinguish himself throughout his military operations and still retain any chance of success.’’ XV Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, at 453, CDDH/407/Rev. 1, 9119. 108 For an argument that it need not, see Infeld 1992.

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wherewithal to do so? Or consider non-lethals. When must a State use non-lethals if conventional weaponry is likely to have more definitive effect? Must a State arm its military with non-lethals if it has the economic resources to do so? }62 The major premises advanced in this essay spotlight these issues. Assuming the ‘‘haves/have-nots’’ dichotomy holds, the ‘‘haves’’ will suffer most from the blurring of the line between civilians/civilian objects and military objectives because they are the ones taking greatest advantage of the economies and efficiencies offered by an advanced civilian economy. Moreover, they will dominate the battlespace through the precision engagement made possible by systems only they can afford. Given these realities, their approach to the issue of normative relativism in discrimination should logically be to advocate raising the objective level of, requisite discrimination, while holding firm against enhanced subjective obligations. If a technologically-advanced military can easily defeat an opponent on the battlefield, would it not seek to keep the fight there by legally immunizing areas beyond it from attack? While an expansive view of the term ‘‘military objective’’ made much sense when facing a huge Soviet militaryindustrial complex across the Fulda gap, in the unipolar setting of the twenty-first century, advanced States likely will play to their advantages by taking a narrower view. Of course, the flip side of this equation is that technologically-advanced States logically will object to expanding subjective obligations because those obligations will fall most heavily on their shoulders. }63 By contrast, the technologically-impaired States’ cognitive approach toward prescriptive evolution likely will oppose expanding the objective understanding of discrimination, for doing so might deprive them of the only targets and strategies likely to hold any promise for success. In many cases, their only hope is not to prevail in combat, but rather to raise the costs for their opponents to an unacceptable level. The fewer targets the States with lesser technology are permitted to strike, the less opportunity they will have to impose costs on their advantaged opponents. By the same token, the more limits placed upon their opponents, the greater the advantage to these States. Normative relativism will drive up costs, both monetarily and in terms of efforts expended, for their opponents, and will limit damage and injury to their own people and facilities. Therefore, it will most often operate to their benefit.

4.4 Assessing the Prospects for the Future }64 It is essential when assessing the future prospects for humanitarian law to maintain focus on the foundational purposes of this body of law. The goal is not to manipulate prescriptive norms to one’s advantage, a particularly insidious form of Realpolitik, nor is it to ensure a ‘‘fair fight’’ on the battlefield by ensuring that neither side enjoys advantages unavailable to the other. Instead, the purpose is humanitarian, to place a human face on a particularly inhuman activity. }65 Humanitarian law accomplishes this objective in two ways. First, it strives to limit the level of violence by restricting certain methods and means of warfare,

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thereby benefiting both participants and non–participants in the conflict. Recognizing that States will hesitate to forego effective techniques and instruments for achieving military objectives, humanitarian law operates at the margins by limiting only the most egregious alternatives (e.g., chemical and biological weapons). Second, it seeks to shield non-participants (primarily civilians) from the conflict by extending certain protections and immunities to them. Discrimination norms represent the archetypal example of this effort. For instance, the proportionality principle recognizes the unfortunate, yet inevitable existence of organized violence in inter-State relations, but attempts to narrow the scope of such violence to the destruction and physical suffering necessary to achieve valid military objectives. }66 Assuming, arguendo, the validity of the analysis proffered in this essay thus far, the future seems to bode ill for the principle of discrimination. The major positive trend lies in the area of precision engagement; however, the technology necessary to conduct operations of this complexity is unlikely to be widespread, at least for the foreseeable future. More important, the disparity between the ‘‘haves’’ and ‘‘havenots’’ reflected in the predictions set forth herein may actually do violence to the principle, for the ‘‘have-nots’’ may well seek that plane of conflict on which they can viably, and asymmetrically, face their high-tech opponents. Other trends either provide disincentives to rigorous application of the principle or encourage its violation. Several simply obfuscate the application of ‘‘discrimination, even for those who might seek to conduct themselves in accordance with its principles. }67 Are the assumptions and motivations underlying the threats to the principle valid, and what approach should States take toward potential deterioration in the principle’s normative impact? Optimally, any attempt to arrest or prevent negative trends should reflect commitment to the purposes informing humanitarian law. Yet, the very concept of the State, and related principles such as sovereignty and territoriality, resonates with self-interest, rather than selflessness. States need not operate from within a zero-sum paradigm in making policy choices, but ultimately, most States are rational actors making rational, cost-benefit decisions. Humanitarian law, by forbidding certain actions, limits the options legally available to the State to advance its own interests. }68 At first glance, then, neither the ‘‘haves’’ nor the ‘‘have-nots’’ appear to have a logical reason for assuming further humanitarian obligations—each seeks ‘‘fairness’’ (or advantage) and unless the burdens fall with equal weight on all parties, that criterion is breached. The ‘‘have-nots’’ fear that more stringent objective standards may deprive them of potential tactics against an enemy that is better placed to operate in the face of these normative constraints on acceptable targets. Arguably, the goal of the ‘‘have-not’’ States should be to relax objective standards so as to take advantage of asymmetrical possibilities. The ‘‘haves,’’ on the other hand, view the possibility of subjective standards as unfairly biased in a world of theoretical sovereign equality. Why should they be held to a higher standard than other States? }69 From a humanitarian standpoint, the appropriate perspective is one that aspires to raise (or at least preserve) both the objective and subjective bars, for doing so will foster protection of non-participants. Whether such aspirations are

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realistic ultimately depends on the cost-benefit calculations made by rational States. Before rejecting this possibility out of hand, it must be recognized that all humanitarian law limits the conduct of States in armed conflict. The very existence of this body of law, and the fact that in most conflicts, most military forces comply with it, is testament to the fact that States are willing to accept some legal limits, even when limitations may deny them immediate advantages. They do so for a number of reasons. Abiding by humanitarian law encourages reciprocal adherence by the other side, and compliance avoids the risks of negative domestic and international reaction. As illustrated by the political and public fallout from the My Lai atrocities during the Vietnam War, such reaction may directly affect the course of an armed conflict. Moreover, adherence to humanitarian norms facilitates war termination and restoration of the peace.109 While States conduct a cost-benefit analysis in determining whether or not to abide by a prescriptive norm, the calculation is far more complex than simply quantifying immediate and direct benefits of compliance. }70 Thus, State practice belies the validity of any broad assertion that efforts to enhance humanitarian law are futile because they would limit State prerogatives in combat. The question then becomes whether, given the disparate cognitive perspective of States, the specific humanitarian law principle of discrimination can be strengthened, or at least withstand efforts to weaken its requirements. That, assuming the accuracy of the rational actor characterization, depends on whether States see that it is in their interest to maintain or fortify the principle. Although States are driven by altruistic motivations at times, self-interest tempers even the policies of those States that harbor the worthiest of intentions. }71 To assess the prospect, it is first necessary to understand the dynamics, visa-vis discrimination, of objective and subjective standards. Recall that discrimination has three components: proportionality, distinction, and minimizing collateral damage. It is theoretically possible to raise the objective demands of discrimination with regard to the first two. The third, by contrast, is inherently contextual and subjective because it requires selecting the most discriminatory option available to the actor, all other things being equal. }72 To begin with, and despite the inherently subjective contextual, experiential, and temporal valuation paradigms discussed earlier, in a sense there is an objective proportionality standard because at some distinct point along the continuum of proportionality, an attack becomes disproportionate. The standard could be heightened through adverbial supplementation, as in ‘‘military advantage must greatly outweigh’’ or ‘‘significantly outweigh’’ collateral damage and incidental

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The difficulties of returning to normalcy in the States formed from the former Yugoslavia and the continuing mistrust and isolation of Iraq are in no small part the product of war crimes committed during those conflicts. For obvious reasons, negotiating and implementing agreements made with a foe that committed such breaches is difficult at best. By contrast, consider the ease with which Argentina and the United Kingdom returned to relative normalcy following the Falklands/Malvinas war, in which compliance with humanitarian law was widespread.

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injury. In an era of precision weaponry, one could argue that doing so would be reasonable. }73 The principle of distinction could also be enhanced objectively by expanding the universe of forbidden targets. This might be accomplished either by clarifying the generalized standard, as in expressly resolving the differences over the necessary nexus with military operations before civilians or non-military objects may be attacked in favor of immunity, or by creating additional prohibitions on certain targets, as was done in Protocol I with respect to dams, dikes, and nuclear electrical power generating stations. }74 Although some ‘‘haves’’ have resisted similar efforts (the US, for example, opposes the limit on striking targets likely to release dangerous forces), as noted above, the ‘‘have-nots’’ are more likely to oppose raising objective standards because they then would be deprived of potential targets beyond the battlefield. The ‘‘have-nots’’ may well seek relaxation of the standards so as to secure greater opportunities to fight asymmetrically. From their perspective, the present objective standards disproportionately aid the ‘‘haves.’’ }75 Of course, from a strictly humanitarian point of view, the issue of which side benefits from an enhanced norm is irrelevant so long as non-participants and their property are shielded from the conflict to a greater degree. That said, only humanitarian approaches that take the existence of inter-State competition into account can succeed. Can the humanitarian and political/military impulses be reconciled? }76 They can. Although it is not immediately self-evident, any approach that endeavors to lower the objective bar is short-sighted because the gains are minimal or non-existent. In fact, nearly universal agreement exists among military experts that harm to civilians or civilian property during an international armed conflict is usually counterproductive.110 It strengthens civilian and military resolve, in part by exacerbating negative images of the enemy. There is no evidence, for instance, that either the bombing of civilian targets by both sides or the use of indiscriminate weapons such as the V-2 during the Second World War yielded tangible returns.111 Additionally, it may decrease domestic support for the conflict (as in My Lai) and engender unfavorable international opinion (as did, for example, Iraqi hostage taking and environmental terrorism). }77 In fairness, it can be asserted that the counterproductive nature of attacks on civilians and civilian objects is ‘‘have’’ specific. The strategic calculus for a ‘‘havenot’’ State facing a ‘‘have’’ is arguably different, for the potential gains of attacking civilian institutions or individuals are greater. As demonstrated in Vietnam, developed nations have displayed a strong reluctance to continue military action if 110 As Adam Roberts has noted, ‘‘[t]here is a need to place more emphasis on the idea that this body of law is intensely practical—that it represents, at least in part, a set of professional military standards and bargains among States; that its origins are as much military as diplomatic; and that its implementation can have consequences which are for the most part compatible with the interests of those applying it.’’ Roberts 1998, at 359, 381. 111 On this issue, and aerial warfare generally, see the excellent article by Parks 1997, pp.77–84.

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the conflict imposes a large burden on their civilian population, is taking place in a distant venue, and does not resonate strongly with the average citizen. }78 Recent history, however, suggests the futility of ‘‘have-not’’ attacks on civilians or civilian objects. The classic example (although not in the context of international armed conflict) of ‘‘have-nots’’ targeting ‘‘have’’ civilians in order to raise costs and force a change in policy is terrorism. Yet, terrorism usually results in abhorrence and a hardening of will by the target state.112 Terrorism may draw the attention of the international community to an issue, but there is minimal evidence that it affects either the victim State or its population in a way useful to the terrorist. While it is true that in Vietnam and other such conflicts public pressure in the US to withdraw resulted from a sense that the population was bearing unnecessary burdens, the difference is that the US and its policies were seen as the cause of the hardship, rather than the enemy. Thus it is not the extent of the burden, but rather its perceived source, that is determinative. To the extent that ‘‘have-nots’’ attack ‘‘have’’ civilians, they will be correctly viewed as culpable, thereby causing any cost-benefit calculations on the part of the ‘‘haves’’ to be skewed accordingly. }79 A good example is an information warfare attack on a stock market. For obvious reasons, the more developed a State’s economy, the greater impact a successful attack against its stock market (or one in which it is involved) would have. Seemingly, then, a stock market would present an attractive target to a ‘‘have-not’’ State frustrated on the battlefield. However, consider the cost-benefit calculus. The attack will have minimal immediate effect on the war-making capability of the target State. In fact, because it is primarily the civilian population and civilian infrastructure that will suffer, public opinion likely will turn against the source of their suffering, the attacker. Moreover, given globalization of the world’s economies, an attack on any one stock market will have measurable reverberating effects internationally. This will hardly advance the ‘‘have-not’’ cause from the perspective of non-participants in the conflict (or even that of some supporters of the ‘‘have-not’’ effort). Clearly, in such a case, the costs far-outweigh the benefits (such as emboldening public opinion at home through a daring blow at one’s enemy) of such an operation. }80 The harder question involves targeting objects or individuals with shared civilian/military character, for by definition their destruction does yield some degree of military advantage. If ‘‘have-nots’’ gain nothing by lowering the objective bar to authorize attacks on civilians and civilian objects, might they nevertheless suffer if it is raised to protect targets which lie on the civilian-military margin? In many cases, they may not, for the prohibition that protects their enemy also protects them, and as a disadvantaged State they are unlikely to enjoy a redundancy of assets or productive capability equal to that of their opponent.

112 Consider, for example, the US response to the La Belle Disco bombing in Berlin in 1986, the crystallization of British attitudes towards the Northern Ireland issue following IRA bombings, or Israeli reaction to the Intifada.

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Moreover, to the extent that such targets are less than obviously military in nature, their destruction will result in proportionally diminished returns with respect to the potential for prevailing in the conflict. For example, even assuming that Iraq set Kuwati oil wells ablaze and released oil into the Persian Gulf in order to foil coalition air and amphibious operations, the net effect on coalition combat operations was minimal. Thus, the ‘‘have-nots’’ should not exaggerate the benefits asymmetrical operations will yield them in the long term. }81 ‘‘Have-nots’’ must realize that the key is not the availability of targets to strike, but rather the net gain derived from their destruction. Arguably, there is little benefit to relaxing objective distinction standards, and probably less to fear in strengthening them than might appear at first glance. In fairness, these premises ring less true with regard to proportionality. Augmentation of the proportionality requirements might well limit ‘‘have-not’’ options, particularly given their relative disadvantage in the realm of precision weaponry. Nevertheless, the loss would be offset to some degree by the fact that as the weaker party to a conflict, military advantage calculations for a given operation are generally greater. Moreover, the international political capital acquired through avoidance of incidental injury and collateral damage is not insignificant. Simply put, despite the threat to objective discrimination standards present and future trends pose, upon deeper reflection neither ‘‘have’’ nor ‘‘have-not’’ States have much net incentive to dispense with or negatively adjust them. }82 Any ‘‘have’’ concern regarding the imposition of more stringent subjective discrimination requirements is similarly overstated. It is simply beyond credulity to suggest that the acceptability of striking a particular type of target or causing a certain amount of collateral damage or incidental injury might one day depend on the characteristics of the attacking State. On what basis would such distinctions be made: GNP? Population? Size of military? Technological prowess of the military? Of course, it is theoretically possible to assert that a powerful State should not be able to strike at the variety of targets its disadvantaged opponents can or that it should cause less collateral damage or incidental injury in pursuit of its military objectives. But even if one accepted such an equalizing approach despite its incongruency with existing humanitarian law purposes, given the complexity of their differences, there is no practical way to draw the necessary distinctions between States. Proportionality already accounts for contextual considerations in calculating military advantage; this is the best that can be expected in imposing ‘‘subjective’’ discrimination standards. }83 An exception lies in application of the third component of discrimination, that requiring selection of the option causing the least collateral damage or incidental injury, all other things being equal. As noted, this standard is already subjective in a sense, for there is no equity clause in humanitarian law that allows a State to chose a more destructive option if its opponent could do no better in conducting the same option. The real question is whether a State should be obligated to create options for itself by, for example, acquiring and fielding more precise, less destructive weaponry. No such obligation exists under current humanitarian law; one takes fielded militaries as one finds them.

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}84 Arguably, States should be willing to expend reasonable resources to acquire weaponry necessary to limit collateral damage and incidental injury. Since the goal is not equality between opposing sides, reasonableness should not be measured in terms of an opponent’s efforts, but rather by a subjective standard based on one’s own valid competing demands (such as well-being of the population). Further, ‘‘reasonableness’’ does not require the unreasonable; thus, ‘‘have’’ States should not fear the substantive effect of such a requirement. The problem resides, as it so often does, in the practicalities. By what standard should one measure reasonableness? How might a State evaluate the relative weight of a return on investment in primary education or elder care against collateral damage or incidental injury avoided due to employment of a precision munition? How would disparate valuation paradigms be addressed? Normative relativity in the fielding of military weaponry is a noble aspiration, but perhaps the issue is best left to the moral realm. }85 To summarize, while it is true that the principle of discrimination is at great risk from current and future trends in war and warfare, all is not lost. It is possible for States to be committed to the humanitarian ends of this body of law without severely disadvantaging themselves. Commitment depends on a State’s ability to avoid opportunistic and reflexive reaction to change, and instead take a longer, more holistic, view of the principle of discrimination and how compliance or deviation therefrom will affect the State’s overall objectives. There is little real long-term advantage to anyone in lowering the objective bar of discrimination, and the costs of raising it are in all probability less than most would initially anticipate. Unfortunately, although imposing heightened subjective standards on those capable of achieving them would also advance humanitarian results, the effort would pose great practical difficulties. Nevertheless, maximizing one’s ability to avoid collateral damage and incidental injury represents an aspirational norm to which responsible and humane States should aspire.

4.5 Fostering Humanitarian Ends in Future War }86 While the purpose of this essay is to identify possible future fault lines in the application of the principle of discrimination, rather than to suggest lex ferenda or new normative schema, several generalized thoughts on the subject can be offered to spark reflection and discourse. First and foremost, before the global community can hope to stop backsliding from current respect for humanitarian law norms, international implementation mechanisms must be improved. In other words, potential malfeasors have to believe that their violations of humanitarian law will come at a cost. If future war may increase the allure of violations, their cost must be raised to at least a corresponding degree. This requires international criminalization of undesirable conduct, impartial and credible fora in which to try offenders, comprehensive jurisdiction over offenses, and the means physically to bring offenders to trial.113 113

On jurisdiction, see Dinstein 1998, at 17. On war crimes generally, see Meron 1998, at 325.

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}87 An International Criminal Court (ICC) holds the greatest promise for altering the cost-benefit analysis of potential violators. Though most responsible States agree on the need for such a judicial body, some of them maintain that the Court’s Statute, adopted in July 1998, is dysfunctional. The objections are both substantive and procedural, and they have led the seminal player in the process, the US, to reject the Statute.114 While this is not the place to debate the merits of the ICC Statute, there can be little doubt that the notion of a permanent tribunal to try war criminals is, in abstracto, a very positive one. There can also be little doubt that for such a tribunal to be maximally effective, US participation is essential. This is especially true in light of the ‘‘haves/have-nots’’ dichotomy. Since the US is the ‘‘have’’ State most likely to be involved in an asymmetrical conflict in which its opponents revert to tactics and strategies that challenge the principle of discrimination, its inclusion in the Court’s implementation efforts is key. Without it, the Court is destined to be little more than a ‘‘permanent ad hoc’’ tribunal in the mold of those for the former Yugoslavia and Rwanda—useful, but limited in both reach and effect. }88 Strengthening the role of international organizations and coalitions of States in enforcing humanitarian standards may also serve to enhance implementation, and thereby create disincentives for normative regression. Inclusivity of enforcement efforts is a positive feature. To begin with, as a general rule, the more States that are engaged in an enforcement action, the greater the sanction available against the miscreant and the greater the deterrent effect. Of course, certain notable failures, such as UNOSOM or UNPROFOR,115 argue against broad international enforcement actions. Nevertheless, while it may sometimes be militarily more sensible to send in forces with focused national identity who have trained and operated together in the past, it should not be forgotten that the mere existence of an international implementation effort, aside from the success thereof, has normative valence. Therefore, the greater the inclusivity of response to a violation of humanitarian principles, the less likely it is to be seen as prescriptively precedential. At least from this vantage point, UN or regional organization efforts to induce compliance should be favored over unilateral or limited multilateral operations. }89 Inclusivity is valuable beyond implementation. As noted above, disparity in military strength creates much of the potential dissonance surrounding the principle of discrimination. Standing alone, a State’s relative military weakness vis-àvis an opponent may drive it to extremes to which it would not otherwise resort. Inclusivity in the form of collective security regimes helps remedy this dynamic in two ways. First, it narrows the universe of likely opponents, particularly because 114 For a discussion of the US rationale for opposition by the Ambassador who led the US Delegation, see Scheffer 1999. On the ICC more generally, see Arsanjani 1999; Nanda 1998; and American Society of International Law, Bibliography on International Criminal Court (visited April 15,1999) http://www.asil.org/crmctbib.htm. 115 United Nations Operation in Somalia (I & II) and United Nations Protection Force. These operations are discussed in United Nations 1996, pp. 285–318, 511–42.

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security regimes tend to be regional in nature and one’s natural enemies are often on one’s borders. Intra-alliance conflict is simply far less likely to happen than extra-alliance hostilities. That Greece and Turkey have not gone to war against each other in the past fifty years is testament, for example, to the stabilizing influence of NATO membership. Moreover, alliance membership compensates for weaknesses of individual members. For example, knowledge that the US can provide strategic and tactical airlift capability to its allies allows them to divert resources they would otherwise devote to acquiring mobility capability to technologies such as precision weaponry. In other words, alliance structures offer members synergy through task-based divisions of labor. This improves the military prowess of the membership as a whole, thereby helping alleviate any concerns members may harbor about raising the objective standards of humanitarian law, especially its discrimination component. Thus, to the extent politically and militarily feasible, and when the aims of the alliance are apolitical, alliance expansion, such as that underway in NATO, tends to be useful from the humanitarian perspective. }90 Arms control efforts also foster reassurance. To address the incentives described earlier with respect to the use of indiscriminate weapons, such efforts should concentrate on the weaponry to which States would likely resort if facing defeat at the hands of overwhelmingly superior foes.116 Nuclear, biological, and chemical (NBC) weapons are the most prominent examples. Consider the situation in Iraq. As empirically demonstrated in 1991, Saddam Hussein’s chances of prevailing over a western coalition are minimal in the foreseeable future. However, his possession of NBC weapons would demonstrably alter the equation in his favor. Therefore, the value of the UNSCOM effort to seek out and destroy Iraqi NBC capabilities extended beyond keeping Saddam Hussein too weak to viably threaten his neighbors; the indiscriminate nature of the weapons infused the effort with humanitarian import.117 An identical purpose underpins the need to support the inspection and verification efforts of the Organization for the Prohibition of Chemical Weapons118 in implementing the 1993 Chemical Weapons Treaty. }91 That said, arms control is not necessarily good in and of itself. It must emphasize those weapons which pose the greatest risks in the context in which they operate. The effort to have the International Court of Justice declare the use of nuclear weapons a violation of international law is an excellent example of this premise.119 Clearly, most uses of these weapons would be unlawful as either 116

One interesting proposal is that when the sales of arms ‘‘to relatively poor nations are unavoidable, international law should require the sellers to actually subsidize the price of sophisticated weaponry that can be used with greater likelihood of distinguishing between combatants and noncombatants.’’ Wright 1991, p. 337. 117 United Nations Special Commission (UNSCOM). 118 Convention on Chemical Weapons, supra note 61, art VII. The OPCW maintains an informational website. See Organization for the Prohibition of Chemical Weapons, The Chemical Weapons Convention Home Page (visited April 15,1999) http://www.opcw.nl/pts.home.htm. 119 See generally Schmitt 1998.

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directly indiscriminate (as in counter-value targeting) or as violative of the principle of proportionality. However, when properly limited, they retain some utility. Reconsider Saddam Hussein’s threats to use chemical and biological weapons in the Gulf War. But for possession of nuclear weapons, how could the coalition effectively have deterred his resort to them? Indeed, had he used them early in the war against Turkish, Arab, or Israeli population centers, the conflict might have taken a very different course. Would the fragile coalition have held together if Israel had entered the fray?120 Would the Turkish government have permitted attacks on Iraq from Turkish bases in Operation Proven Force if the cities of Southeast Turkey had been placed at risk? Might the Arab States have been willing to accept the annexation of Kuwait into Iraq to stave off severe civilian casualties? These queries are not meant to suggest that the nuclear powers should retain their nuclear arsenal. Instead, the point is simpler—one must be careful what one wishes for. Banning or limiting weapons does not inevitably lead to either the protection of the civilian population or a ratcheting down of combat intensity. Each case must be evaluated in the global context in which it occurs. }92 Finally, discrimination can be fostered not only by controlling weapons, but also by limiting the universe of legal targets. For instance, there has been much debate over the past decade regarding whether the environment should be protected during armed conflict by a convention specifically addressing the topic. Similarly, as information operations increasingly dominate future war, calls for protecting civilians from their effects through the codification of use restrictions should be anticipated. As with arms control, the prospect that future war will strain the principle of discrimination constitutes ample reason to redouble efforts to codify (with high degrees of inclusivity) limits on what can be attacked in armed conflict. However, and again as with arms control, such limits are not inherently beneficial. To safeguard the environment at the expense of human protection does a disservice to the principle of discrimination. Similarly, to absolutely restrict strikes on particular information targets makes little sense if the only alternative to neutralizing their military value is conventional strikes against related facilities that, albeit proportional, cause greater civilian suffering. The point is that although codification can advance valid humanitarian ends, and should be pursued when it

120 This point does illustrate one possible ‘‘valid’’ motivation for a ‘‘have-not’’ State to strike directly at enemy civilians or civilian objects. In the case of a coalition force consisting of ‘‘strange bedfellows,’’ potential cracks in the coalition may be exploited by taking this tact. Saddam Hussein certainly tried this with his Scud attacks on Israeli population centers, and with some effect. Much of the US air effort was redirected to finding mobile Scud launchers in the hope that they could be destroyed, thereby foreclosing the need for the Israelis to enter the fray. The immediate military benefit, however, of destroying the Scuds was minimal. Instead, it was a ‘‘political’’ operation, for had the Israelis attacked Iraqi forces, it was not certain that the coalition, which included opponents of Israel such as Syria, would have held together. That said, the circumstances under which such a scenario might recur are fairly unlikely, and certainly not sufficient alone to justify a ‘‘have-not’’ State in opting out of a more stringent humanitarian regime because of fear that it might lose a valuable option open to it when facing superior forces in the future.

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has that potential, any such effort must be evaluated in the greater scheme of things.

4.6 Concluding Thoughts }93 It is important to emphasize that the notional future posited in this essay is simply that—notional. However, it is a future that many see as plausible, even probable.121 Tomorrow’s war may potentially place the principle of discrimination, which lies at the core of humanitarian law, under great stress. Sadly, it may lead some to adopt positions that challenge the very foundations of humanitarian law. One commentator has even suggested that [i]nternational law in its present form shows more concern with antiquated concepts of chivalry among combatants than with the modem reality of mass destruction. The rules of war do not adequately reflect the reality of warfare between a third-world country and a superpower. Compliance with the rules of war is a prescription for disaster. This lesson was learned a long time ago in places such as Vietnam and Afghanistan. To assert that massive aerial bombardment—with its inevitable civilian casualties—complies with the international laws of warfare, but the reciprocal efforts by a third-world country to put civilian populations at risk violate international law reveals one’s own political interests. One cannot take this position and realistically expect the international system to gain the respect of countries that are more likely to be the victims than the allies of great powers…. The international law that governs the conduct of war is ultimately a system designed to protect the self-interests of the more powerful states. Rules that do not treat all lives equally cannot, in the long run, support the international system.122

}94 The author has lost sight of the prize. Humanitarian law is designed to limit the reach and intensity of armed conflict, not to protect the interests of the ‘‘haves.’’ Quite to the contrary, the major instruments of humanitarian law resulted from concern over the tragic humanitarian consequences of conflict between powerful States. The dilemma is that current trends may seem to require deviation from humanitarian norms if weaker States are viably to compete in international armed conflict. One would certainly hope that those who share humanitarian commitment would not advocate sacrificing the all-too-limited protection nonparticipants in armed conflict enjoy, merely to render war more equitable. They must not forget that war is a political decision for which the average citizen bears the burden, but not the responsibility. }95 The challenge for the future is to approach this dilemma with an appropriate cognitive perspective, one that comprehends and works towards the humanitarianism that underlies humanitarian law. Doing so will require

121 As noted earlier, the future described is particularly dependent on official US publications such as Joint Vision 2010, supra note 55; White House 1997; and Joint Chiefs of Staff 1997. 122 Kahn 1993, p. 437. Note that to some extent his analysis mixes, compares, and contrasts ad bellum and in bello issues. This detracts from the persuasiveness of the argument.

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a normative sophistication that all too often escapes both those focused on minutiae while insensitive to the ultimate aim of the law, and those who fail to grasp the fact that the idealism law represents must eventually play itself out in a real world. In order to continue to advance the aims of discrimination, it will be necessary to see both the forest and the trees. Whether the global community will have the maturity to master this challenge remains to be seen.

Abbreviations AEF

Air expeditionary force

AWACS

Airborne warning and control system

GNP

Gross national product

ICC

International Criminal Court

ICRC

International Committee of the Red Cross

NATO

North Atlantic Treaty Organization

NBC

Nuclear, biological, and chemical

RMA

Revolution in military affairs

THAAD

Theater high altitude area defense

UN

United Nations

UNOSOM

United Nations Operations in Somalia

UNPROFOR

United Nations Protected Force

UNSCOM

United Nations Special Commission

References Anderson G (1995) Unosom II: not failure, not success. In: Donald, Daniel CF, Bradd C, Hayes (eds) Beyond Traditional Peacekeeping 267–273 Arsanjani MH (1999) The Rome statute of the international criminal court. 93 Am J Int L 22 Brody H (1991) Great expectations: why technological predictions go awry. Tech Rev Capaccio T (1997) GAO questions U.S air power impact on Gulf war. Def Wk Chandler RW (1998) Counterforce: locating and destroying weapons of mass destruction’ (USAF Academy Institute for National Security Studies Occasional Paper 21) Cohen EA (1996) A Revolution in Warfare. Foreign Aff Cook III JW et al (1995) Non-Lethal weapons: technologies, legalities, and potential policies. Airpower J Special Ed Cooper P (1996) US Develops army of tiny robots. Def News November 11–17

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Cordesman AH (1992) Compensating for smaller forces: adjusting ways and means through technology. U.S Army War C Third Ann Conf Strategy 1 Crawford JW (1997) The law of noncombatant immunity and the targeting of national electrical power systems. Fletcher F World Aff D’Amato A (1998) Megatrends in the use of force. In: Schmitt MN, Leslie C. Green (eds) The law of armed conflict: into the next millennium 1 Demulinen F (1987) Handbook on the law of war for armed forces, pp 3–4 DiNardo RL, Hughes DJ (1995) Some cautionary thoughts on information warfare. Airpower J Winter 75 Dinstein Y (1998) The universality principle and war crimes. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium 1 Doswald-Beck L (1998) Implementation of international humanitarian law in future wars. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium 1 Drew DM (1987) Technology and the american way of war: worshipping a false idol? Am Force J Logistics Winter Dunant (1862) Souvenir de solferino Duncan JC (1998) A primer on the employment of non-lethal weapons. 45 Naval L Rev 1 Dunlap CJ Jr (1996) How we lost the high-tech war of 2007: a warning from the future. Wkly Standard Falk RA (1997) Nuclear weapons, internatiuonal law and the world court: a historic encounter. 91 Am J Int L 64 Fenrick WJ (1982) The role of proportionality and protocol I in conventional warfare. 98 Mil L Rev 91 Fitzsimonds JR (1995) The coming military revolution: opportunities and risks. Parameters Gardam JG (1993) Proportionality and force in international law. 87 Am J Int’l L 391 Geldman B (1991) US bombs missed 70% of the time; ‘‘Smart’’ munitions far more accurate. Wash Post Goure D (1993) Is there a military-technical revolution in America’s future? Wash Q Autumn Graham B (1998a) Anti missile systems’ costs test US ability to pay, general says. Wash Post Graham B (1998b) New weapons give navy top air role this time. Wash Post Gray CS (1996) The influence of space power upon history. 15 Comp Strategy 293–297 Greenwood C (1998) The Law of Weaponry at the Start of the New Millennium. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium 1 Grunawalt R et al (eds) (1996) 69 US Naval war college international law studies, protection of the environment during armed conflict Hampson F (1992) Proportionality and necessity in the Gulf conflict. Proc 86th Annual Meet Am Soc’y Int L 45 53–54 Harmon CC (1991) ‘‘Are We Beasts?’’: Churchill and the moral question of world war II ‘‘Area Bombing’’ Human rights watch (1991) Needless deaths in the Gulf War Huntington SP (1993) The clash of civilizations? Foreign Aff Implementing limitations on the use of force: the doctrine of proportionality and necessity (1992) Proc 86th Annual Meet Am Soc’y Int L 39 Infeld DL (1992) Precision-guided munitions demonstrated their pinpoint accuracy in desert storm; But is a country obligated to use precision technology to minimize collateral civilian injury and damage? 26 Geo Wash J Int L Econ 109 Institute for national strategic studies (1996) Strategic Assessment Jankowitsch P (1992) Legal aspects of military space activities. In: Jasentuliyana N (ed) Space law: development and scope 143 Jezior BA (1997) The revolutionized warfighter circa 2025 Johnson SE, Libicki MC (eds) (1995) Dominant battlespace knowledge Joint chiefs of staff (1997) Concept for future joint operations: expanding joint vision 2010 Kahn PW (1993) Lessons for international law from the Gulf War. 45 Stan L Rev 425

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Krepinevich AF (1995) Cavalry to computer: the pattern of military revolutions: In: Naval War college faculty (eds) 2nd ed Strategy force plan 430 Levie H (1998) An optimist looks at the law of war in the twenty-first century. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium 1 Libicki MC (1996) Information and nuclear RMAs compared. Nat Def U Strategic F No 82 http://wwvv.ndu.edu/inss/strforum/forum82.html (visited Apr 15 1999) Lohr S (1996) Ready, Aim, Zap. NY TimFs Matheson MJ (1987) Session one: the united states position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions. 2 Am U J Int’l L Pol 419 Matthews W (1998) New bombs penetrate, incinerate, air force times, February. 16 McKenzie KF (1995) Beyond luddites and magicians: examining the MTR, parameters summer Meron T (1998) War crimes law for the late twenty-first century. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium 1 Morgan RA (1994) Military use of commercial satellites: a new look at the outer space treaty and ‘‘Peaceful Purposes.’’ 60 J Am L Comm 237 Munro N (1995) Our electronic achilles’ heel. Wash Posr Wkly Ed August 14–20 Nanda VP (1998) The establishment of a permanent international criminal court. 20 Hum Rts Q 413 Normand R, Jochnick C (1994) The legitimization of violence: A critical analysis of the gulf war. 35 Harv J Int L 387 Oeter S (1995) Methods and means of combat. In: Dieter Fleck (ed) The handbook of humanitarian law in armed conflicts 105 Office of the secretary of defense (1996) Proliferation: Threat And Response Office of the under secretary of defense for acquisition and technology (1996) Report of the defense science board task force on information warfare defense Nov 1996 Owens WA (1995) The emerging system of systems, Proceedings May 1995 Owens MT (1996) Planning for future conflict: strategy vs ‘‘Fad.’’ Strategic Rev Summer 1996 Parks WH (1990) Air war and the law of war. 32 Am Force L Rev 1 113–145 Parks H (1997) The protection of civilians from air warfare. Israel Y B Hum Rts 65 Pasternak D (1997) Wonder weapons. U.S News World Rep July 7 Pine A (1997) Revolutionary high-tech military isn’t ready for the world’s battlefields Providence J January 5 Ricks TE (1997) Information-warfare defense is urged. Wall St J Jan 6 Roberts A (1998) Implementation of the laws of war in late-twentieth-century conflicts. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium 1 Rosenblad E (1979) International humanitarian law of armed conflict: some aspects of the principle of distinction and related problems Sandoz Y et al (eds) (1987) Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Scheffer DJ (1999) The united states and the international criminal court. 93 Am J Int L 12 Schindler D, Taman J (eds) (1988) The laws of armed conflicts Schmitt MN (1997) Green war: an assessment of the environmental law of international armed conflict. 22 Yale J Int L 1 Schmitt MN (1998) The international court of justice and the use of nuclear weapons. Naval War College Rev Spring 1998 Schmitt MN (1999a) Computer network attack and the use of force in international law: thoughts on a normative framework. 37 Colum J Transnat’l L 885 Schmitt MN (1999b) War and the environment: fault lines in the prescriptive landscape. Archiv Des Volkerrechts March 1999 Schmitt MN, Green LC (eds) (1998) The law of armed conflict: into the next millennium 1 Schneider GR (1997) Nonlethal weapons: considerations for decision makers (Jan 1997) Arms control, disarmament, and international security occasional paper, University of Illinois at Urbana-Champaign 9–10

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Secretary of defense (1998) Annual report to the president and the congress Shelat A (1994) An empty revolution: MTR expectations fall short. Harv Int Rev Summer 1994 Sinding S (1999) Now we can be serious about population politics. Int Herald Trib February 8 1999 Sofaer AD (1988) Agora: the I.I.S. decision not to ratify protocol I to the Geneva Conventions on the protection of war victims. 82 Alm J Int L 784 The international institute for strategic studies (1997) The military balance 1997/98 Thieret JE et al (1996) Hit Em Where it Hurts: Strategic Attack in 2025 in 3 Am University 2025 White Papers 173 Turner RF (1998) Nuclear weapons and the world court: the ICJ’s advisory opinion and its significance for US strategic doctrine. In: Michael N, Schmitt (ed) The law of military operations 309 U.S. Air Force (1996) Global engagement: a vision for the 21st century U.S. Army (1996) Army Vision 2010 U.S. Department of defense (1992) Report to congress on the conduct of the persian Gulf War (Title V Report to Congress) U.S. Government Accounting Office (1995) Tactical Aarcraft: concurrency in development and production of F-22 aircraft should be reduced (visited Apr 27 1999) http://frwebgate.access. gpo.gov/cg..txt&directory=diskb/wais/data/gao U.S. Navy (1994) Forward From The Sea U.S. Space command (1997) Vision for 2010 United nations (1993) Trends in international distribution of gross world product United nations (1996) The blue helmets: a review of United Nations peace keeping 285–318,511– 42 3rd edn Usaf scientific advisory board (1995) New world vistas. Air and space power for the 21st century (summary vol.1995) Waller D (1995) Onward cyber soldiers TIME August 21 Weiner T, Myers SL (1998) Flaws in US Account raise questions on strike in sudan. N Y TIMES August 29 White House (1997) A national security strategy for a new century (visited April 27 1999) http://www.jya.com/nss.htm Wright RG (1991) Noncombatant immunity: a case study in the relation between international law and morality. 67 Notre Dame L Rev 335

Chapter 5

Fault Lines in the Law of Attack

Abstract This chapter examines the international humanitarian law governing the conduct of ‘‘attacks’’. In particular, it identifies and analyzes topics in the law of attack that are presently unsettled as a matter of law. Issues addressed include the scope of the term ‘‘military objectives’’, the meaning of the term ‘‘attack’’, application of the rule of proportionality, and the precautions in attack requirements. The author offers his own assessment of how best to resolve such matters.

Contents 5.1 Introduction..................................................................................................................... 5.2 Military Objectives......................................................................................................... 5.2.1 Qualification as a Military Objective ................................................................ 5.2.2 Lines of Communication as Military Objectives .............................................. 5.2.3 Morale of the Enemy Civilian Population as a Military Objective ................. 5.2.4 Enemy Leadership a Lawful Military Objective............................................... 5.2.5 Meaning of the Term ‘Attack’........................................................................... 5.3 Proportionality ................................................................................................................ 5.3.1 Application of the Rule of Proportionality........................................................ 5.3.2 ‘Force Protection’ and Proportionality Calculations ......................................... 5.3.3 The Effect of Human Shields on the Rule of Proportionality.......................... 5.4 Precautions in Attack ..................................................................................................... 5.4.1 Meaning of ‘Feasible’ ........................................................................................ 5.4.2 The Relativity of Precautionary Obligations ..................................................... 5.5 Conclusions..................................................................................................................... References................................................................................................................................

176 177 179 181 182 183 187 189 190 193 194 198 199 202 203 204

First published in S. Breau and A. Jachec-Neale, eds., Testing the Boundaries of International Humanitarian Law, 277 (British Institute of International and Comparative Law, 2006).

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_5,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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5.1 Introduction During recent hostilities, global attention has focused sharply, and often critically, on the law of international armed conflict (LOIAC). Debates continue to rage over, inter alia, the applicability of LOIAC to counter-terrorist operations, the status of government civilian employees and contractors on the battlefield, the proper characterization and treatment of detainees, the requirements of occupation law, and the relationship between LOIAC and human rights law. At no time in the past half-century has the international law governing warfare drawn as much attention. The essence of warfare is ‘the attack’, defined in Article 49 of the 1977 Additional Protocol (I) to the 1949 Geneva Conventions (AP1) as ‘acts of violence against the adversary, whether in offence or in defence.’1 Together with other aspects of LOIAC, the legal norms regarding attacks are increasingly revealing themselves to be less than fully settled. As combat occurs in the glare of television cameras and under intense non-governmental organization (NGO) scrutiny, fault lines––that is, points of contention within the LOIAC community––have appeared in this aspect of the law. Some are real, some merely perceived. This chapter seeks to catalogue those fault lines that appear most frequently and forcefully in expert and lay discourse. Where they result from a misinterpretation of the law, it sets forth the accepted understanding of the principle or rule in question. On the other hand, in cases where genuine disagreement exists among experts, the chapter identifies and evaluates the competing approaches. The law governing attack is linear. First, the target must qualify as a ‘military objective’, a LOIAC term of art. Second, the ‘means’ (weapon) and ‘method’ (tactic) employed must be lawful. Third, attacks with lawful methods and means against legitimate military objectives must still comply with the rule of proportionality, which prohibits attacks causing unintended but foreseeable damage to civilian objects (collateral damage) and harm to civilians (incidental injury) that is excessive relative to the concrete and direct military advantage anticipated. Fourth, LOIAC requires attackers to take certain specified precautions. Only attacks meeting each of the four cumulative conditions are lawful. This chapter surveys ten pervasive fault lines bearing on the first three (the fourth presents less dramatic issues). Although each topic merits fuller treatment than possible within the confines of a single chapter, the discussion will hopefully contribute to shaping and refining further analysis.

1 Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (12 December 1977) Article 49, 1125 UNTS 3, 16 ILM 1391 (1977) (hereinafter API).

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5.2 Military Objectives At the heart of LOIAC lies the principle of distinction. Labelled by the International Court of Justice (ICJ) as one of two ‘cardinal’ principles in this body of law,2 distinction serves as the ‘foundation on which the codification of the laws and customs of war rests.’3 Indeed, the principle appeared in codified form as early as the 1863 Lieber Code, a guide for conduct of the Union forces during the American Civil War.4 It was subsequently confirmed in the 1899 and 1907 Hague Regulations,5 which the Nuremberg Tribunal deemed ‘declaratory of the laws and customs of law,’ a position reiterated by the International Court of Justice (ICJ) a half century later.6 The principle of distinction also found expression throughout the 1949 Geneva Conventions, in that the four treaties established categories of protected persons.7 It undoubtedly constitutes customary international law.8 In its contemporary form, distinction has been codified in API, Article 48. In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

2 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, 1996 ICJ Reports, para 78 (hereinafter Nuclear Weapons). The other principle is ‘unnecessary suffering.’ 3 Sandoz et al. 1987 para 1863 (hereinafter Commentary). 4 War Department, Adjutant General’s Office, Instructions for the Government of Armies of the US in the Field, General Orders No 100 (Lieber Code) (24 April 1863) Article 22. 5 Convention [No II] with Respect to the Laws and Customs of War on Land, with annex of regulations, Article 22, 29 July 1899, 32 Stat 1803, 1 Bevans 247; Regulations Respecting the Laws and Customs of War on Land, annex to Convention (No IV) Respecting the Laws and Customs of War on Land, 18 Oct 1907, Article 22, 36 Stat 2277, 1 Bevans 631. 6 Trial of the Major War Criminals vol. I 1947, p. 254; Nuclear Weapons, supra n. 2, para 77. See also, Legal Consequences of a Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, General List. No 131 (9 July 2005) para 86; Report of the Secretary General on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (3 May 1993), UN Doc S/25704, 32 ILM 1159 (1993). The Security Council approved the report unanimously. 7 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 Aug 1949) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (12 Aug 1949) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (12 Aug 1949) 75 UNTS 135; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 Aug 1949) 75 UNTS 287. 8 Henckaerts and Doswald-Beck 2005, Rules 1 and 6. See also Rome Statute of the International Criminal Court (17 July 1998) Article 8.2(b)(i), UN Doc A/CONF. 183/9, 37 ILM 1002 (1998), corrected through 16 Jan 2002.

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Two derivative rules provide granularity to the general principle. The first is a prohibition of attacks on civilians, Article 51.2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Article 52.1 sets forth the second, a corresponding ban on attacking civilian objects: ‘Civilian objects shall not be the object or attack…’ It goes on to define civilian objects as ‘all objects which are not military objectives.’ Pursuant to Article 52.2, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.9

Thus, there are four alternative ways an object can qualify as a military objective—through nature, location, purpose, or use. ‘Nature’ denotes intrinsic military significance, thereby including objects like ammunition depots, tanks, combat aircraft, headquarters, or military barracks. ‘Location’ refers to areas that have ‘special importance to military operations’. The classic example is a mountain pass that can be blocked to foil the enemy’s advance. When reliable intelligence or other information indicates that the enemy intends to use an object militarily in the future, the object qualifies as a military objective through ‘purpose’. Finally, ‘use’ means that the enemy is presently utilizing an object militarily.10 Virtually any object or location may become a lawful military objective through use (or abuse) by a belligerent. A number of other LOIAC rules either build on or foster the general principle of distinction. For instance, specific API articles ban or restrict attacks against medical establishments, cultural objects, places of worship, objects indispensable to the civilian population, the natural environment, and works and installations containing dangerous forces.11 Moreover, the rule of proportionality and the 9 Protocols II and III of the Conventional Weapons Convention and the Second Protocol to the Cultural Property Convention, as well as many military manuals and training material (including those of the US), repeat this formula. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, 1980, 1342 UNTS 137 (1980); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II), 1980, as amended, 1996, Article 2.6, 35 ILM 1206 (1980); Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1980, Article 1.3, 1342 UNTS 171; Second Protocol to the Hague Convention of 1954 for Protection of Cultural Property in Event of Armed Conflict (1996) Article 1(f), 38 ILM 769 (1999); US Navy/Marine Corps/Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14 M, MCWP 5-2.1, COMDTPUB P5800.7, para 8.1.1, 1995, reprinted in its annotated version as vol 73 of the US Naval War College International Law Studies (1999). On the topic generally, see Dinstein 2002; Robertson 1998. 10 Commentary, supra n. 3, paras 2020–2024. 11 API, supra n. 1, Articles 12, 53, 54, 55, and 56, respectively.

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requirement to take precautions in attack (discussed below) seek to minimize the harmful effects of warfare on the civilian population.

5.2.1 Qualification as a Military Objective The most frequently cited disagreement regarding the distinction principle surrounds the reach of the term ‘military objective’, a rather curious fact given that all sides, including non-contracting States such as the United States, accept the API textual definition as correct.12 Significant in this regard is the divide between States (led by the US) that interpret the notion broadly, and those that take a restrictive approach. At the centre of the debate lies the US Navy, Marine Corps and Coast Guard’s Commander’s Handbook on the Law of Naval Warfare. The most recent and authoritative American LOIAC manual, the Handbook describes military objectives as objects contributing to the enemy’s warfighting or war sustaining capability. It explains that ‘[e]conomic targets of the enemy that indirectly but effectively support and sustain the enemy’s war-fighting capability may also be attacked,’ citing Confederate cotton production during the US Civil War as an example.13 A contemporary illustration is an oil industry that entirely underpins a nation’s economy. The ‘war sustaining’ verbiage also appears in US joint targeting doctrine and has been included in the definition of military objectives used by the Military Commission at Guantanamo.14 On the other side are those who point to the phrases ‘effective contribution to military action’ and ‘offers a definite military advantage.’ They argue their plain meaning extends only to objects with a close nexus to the conduct of hostilities. The official ICRC Commentary on Article 52.2 supports this interpretation, suggesting that the ‘definite military advantage’ requirement excludes ‘an attack which only offers potential or indeterminate advantages.’15

12

The US position on API is authoritatively set out in Memorandum for Assistant General Counsel (International), Office of the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications 8 May 1986 (on-file with author). See also Matheson 1987. 13 NWP 1–14M, supra n. 9, para 8.1.1. This assertion is labelled a ‘statement of customary international law.’ The Handbook cites General Counsel, Department of Defense, Letter of September 22, 1972, reprinted in (1973) 67 American Journal of International Law 123, as the basis for this characterization. 14 US joint doctrine reinforces this approach by providing that ‘[c]ivilian objects consist of all civilian property and activities other than those used to support or sustain the adversary’s warfighting capability.’ Joint Chiefs of Staff, Joint Doctrine for Targeting, Joint Publication 3-60, 17 Jan 2002 A-2. The term ‘war sustaining’ also appears in the Instructions for the US Military Commission at Guantanamo. Department of Defense, Military Commission Instruction No 2, Crimes and Elements for Trials by Military Commission (30 April) 2003 para 5D. 15 Commentary, supra n. 3, para 2014.

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When considering oil, few would contest the legitimacy of striking facilities that produce POL (petroleum, oil, and lubricants) for the military (even if not exclusively for the armed forces). However, attacking oil facilities dedicated solely to export production in order to deprive the military of funding stretches the definition beyond its intended reach. As one commentator has noted, ‘[f]or an object to qualify as a military objective there must exist a proximate nexus to military action (or ‘‘war-fighting’’).’16 The present writer endorses this restrictive approach. Despite the apparent chasm between the broad and narrow approaches, the practical impact has been negligible. There are two reasons this is so, both logical. First, it takes a long time for attacks on a country’s economy to affect battlefield operations; therefore, it makes better sense to expend munitions against the enemy’s military. Second, if the conflict is likely to end in occupation, it is counter-productive for an attacker to destroy the economic means of supporting the enemy population. This reality under-pinned much of the Operation Iraqi Freedom (OIF) targeting philosophy, during which Coalition forces assiduously avoided harming the Iraqi economic and logistic infrastructure. The only enduring controversy over target status during recent combat operations involved NATOs strike on Belgrade’s Radio Televisija Srbije facility during Operation Allied Force (OAF) in 1999. Litigation ensued in the European Court of Human Rights, but the Court dismissed the case on jurisdictional grounds.17 Moreover, the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (ICTY) found insufficient basis to indict (on the grounds of attacking a civilian object).18 Coalition forces later struck television stations during Operations Enduring Freedom (OEF-Afghanistan) and OIF.19 Whether media facilities constitute military objectives remains unsettled, but the debate does not evoke the ‘war-sustaining’ issue in its classic form.20

16

Dinstein 2004, pp. 87–88. Bankovic and Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the UK (12 December 2001) Eur Ct Hum Rts App No 52207/99. 18 Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (13 June 2000) paras 71–79, reprinted in (2000) 39 ILM 1257. On 2 June 2000, the Prosecutor announced her decision not to proceed to the Security Council. UN Doc S/PV.4150. 19 Albeit not intentionally in every case. 20 A fact illustrated by inclusion of broadcasting and television stations in an illustrative list of military objectives proffered by APV Rogers, who nevertheless also cites ‘dangers in widening the definition of military objectives’. Rogers 2004, p. 81, 84. The ICRC included such facilities in a proposed list of military objectives it offered in 1956. Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, Annex (1956). The list is reprinted in Report to the Prosecutor, supra n. 18, para 39. For a analysis arguing that they are not legitimate military objectives, see Dougherty and Quenivet 2004, pp. 190–192. 17

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Finally, one school of thought suggests expansion of the definition of military objectives to meet the realities of contemporary warfare. Advocates argue that: We need a new paradigm when using force against societies with malevolent propensities. We must hold at risk the very way of life that sustains their depredations, and we must threaten to destroy the world as they know it if they persist. This means the air weapon should be unleashed against entirely new categories of property that current conceptions of LOAC put off-limits.21

The advent of effects-based operations may impel others to similar conclusions.22 Many, including the present writer, have criticized such assertions. In fairness, though, it is essential to emphasize that even supporters recognize their position represents mere lex ferenda.

5.2.2 Lines of Communication as Military Objectives A recurring debate rages over whether lines of communication constitute military objectives by nature, such that they may be attacked regardless of their current use, future purpose, or location. One influential commentator has included ‘arteries of transportation of strategic importance, principally main-line railroads and rail marshalling areas, major motorways (like the interstate roads in the USA, the Autobahn in Germany and the autostradas in Italy), navigable rivers and canals (including the tunnels and bridges of railways and trunk roads)’ in a proposed list of objects which ‘eo ipso make an effective contribution to military action.’23 Given the centrality of logistics in modern warfare, this makes sense. For instance, even though a bridge is presently used exclusively for civilian purposes, dropping it may limit enemy options as the conflict unfolds in often-unpredictable ways. To the extent the bridge’s destruction shapes the enemy’s military options, the attack makes an effective contribution to the attacker’s military situation. The opposing view holds that lines of communication should be evaluated on a case-by-case basis. Those used militarily, wherever located, qualify as military objectives. Further, those that factor into known future enemy operations meet the purpose criterion. Perhaps most significantly, attacks on lines of communication designed to shape or restrict enemy military activities fall within the location criterion. But it is surely possible to posit lines of communication, an attack on which will have absolutely no effect on enemy military activities, present or future. Consider OAF. It would have been excessive for Yugoslav forces to treat every major

21

Dunlap Jr 2000. See also Meyer 2001. Effects-Based Operations focuses not on the object destroyed, but rather on the effects generated through destruction of the object. On Effects-Based Operations and law, see Schmitt 2004b. 23 Dinstein 2004, p. 88. 22

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highway, bridge, combat aircraft-capable civilian airfield, or major waterway in the 19 NATO nations as a legitimate target. In other words, unless an attacker can credibly articulate how an attack on a line of communication will effectively contribute to military actions and offer a definite military advantage in the circumstances ruling at the time, the line is not legally targetable. Relevant in this regard are the scope and objectives of the conflict. In the Report to the ICTY Prosecutor, the committee established to review NATO actions noted: When the definition [of military objective] is applied to dual-use objects which have some civilian uses and some actual or potential military use (communications systems, transportation systems, petrochemical complexes, manufacturing plants of some types), opinions may differ. The application of the definition to particular objects may also differ depending on the scope and objectives of the conflict. Further, the scope and objectives of the conflict may change during the conflict.24

This is a perceptive comment. There are certainly cases where entire categories of LOCs become military objectives upon the commencement of hostilities. However, conflicts may be limited in terms of objectives and (or) strategy and tactics. During OAF, it was NATOs avowed intention to avoid introducing ground forces. Moreover, the campaign objectives centred on coercing the Yugoslav leadership, rather than conquest of the country. In light of such strategy and objectives, it would have been indefensible to treat every Yugoslav line of communication as military objectives. This logic applies equally to any potentially dual-use target set. Despite the debate, the distinction between the two approaches will seldom have any practical import. The ‘principle of war’ known as ‘economy of force’ generally deters commanders from executing attacks having little tangible impact on military operations; they prefer to use their forces against those targets likely to measurably influence combat operations.25 This being so, legal characterization of lines of communication will influence operations far less than the realities of warfare.

5.2.3 Morale of the Enemy Civilian Population as a Military Objective The persistent controversy over targeting the morale of the enemy population confuses the legal concept of military objective with the military notion of strategic, operational, and tactical aims. An attack’s effect on civilian morale is

24

Final Report to the Prosecutor, supra n. 18, para 37. ‘Economy of force is the judicious employment and distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, defense, delays, deception, or even retrograde operations in order to achieve mass elsewhere at the decisive point and time,’ Joint Chiefs of Staff, Joint Warfare of the United States, Joint Publication 1 (14 November 2000) B-1.

25

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irrelevant as a matter of law—a potential target either qualifies as a military objective because it makes an effective contribution to military action (through nature, location, purpose or use) and destruction or neutralization will yield a definite military advantage… or it does not. If it so qualifies, it may be attacked, period. The fact that the attacker hopes the strike will weaken civilian morale (even intends for it to) does not detract from the target’s status as a military objective. Thus, for example, an attacking force may target military equipment, facilities, and forces based in the capital city in order to undercut the population’s confidence in its government, even though the targets do not exert much influence on the course of hostilities. What is not allowed is attacking civilians (who are not directly participating in hostilities, see below) or civilian targets for the purpose of undercutting morale. The matter of civilian morale was highlighted during OAF when Lieutenant General Michael Short, the Air Component Commander, stated ‘I felt that on the first night the power should have gone off, and major bridges around Belgrade should have gone into the Danube, and the water should be cut off so the next morning the leading citizens of Belgrade would have got up and asked ‘‘Why are we doing this?’’ and asked Miloševic´ the same question.’26 Much controversy ensued, with critics proclaiming that Short had advocated an attack on civilian morale. Of course he had. Yet, the relevant question was not whether it was permissible to target civilian morale. It was whether the power, bridges, and water qualified as lawful military objectives through nature, location, use, or purpose. Speaking later at a conference on the conflict, Short got it right: I am not going to think that you are so naive that I do not say to myself and to my planners that this will also make the Serb population unhappy with their senior leadership because they allowed this to happen. But that is a spin off—a peripheral result—of me targeting a valid military objective.27

There is nothing unlawful about seeking to affect civilian morale by striking otherwise lawful military objectives.

5.2.4 Enemy Leadership a Lawful Military Objective Leadership strikes assumed centre stage during Operation Iraqi Freedom. Coalition forces struck 50 ‘leadership targets’ during the air campaign. In fact, the launch of operations was advanced when intelligence reported that Iraqi President Saddam Hussein was at Al-Dura Farm near Baghdad. Seeing a chance to decapitate the

26

Whitney 1999, A1. Michael Short ‘Operation Allied Force from the Perspective of the NATO Air Commander’ in Wall 2002, 29.

27

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Iraqi regime in the first blow of the war, President Bush immediately authorized F-117 aircraft and cruise missiles strikes.28 The strategy of attacking an opponent’s leadership is alluring. At least in theory, decapitation can paralyze the enemy’s nervous system, as loss of command and control cascades down through subordinate echelons. Organizations characterized by highly centralized decision-making structures are especially vulnerable. Decapitation strategies, traditionally controversial, seem to be acquiring greater legitimacy. Recall that US Air Force Chief of Staff General Michael Dugan was unceremoniously fired in 1990 when he acknowledged Saddam Hussein’s death was an Operation Desert Storm air campaign objective.29 But by Operation Allied Force, NATO was willing to publicly announce it was bombing government ministries in order to effect a ‘longer term and broader impact on the Serb military machine.’30 Institutional decapitation had come of age. And in 2001 Coalition forces openly targeted Taliban leader Mullah Omar. No significant criticism of this individualized targeting ensued. Human Rights Watch’s comments on the OIF air campaign in its report Off Target aptly illustrate the growing acceptability of some sorts of decapitation: [A]erial strikes targeting the leadership of a party to the conflict… are governed by the same rules of IHL that apply to other military actions: The individual attacked must be a military target and the attack must not be indiscriminate, i.e. it must distinguish between civilians and combatants, and it must not cause harm to the civilian population or civilian objects which could be ‘excessive in relation to the concrete and direct military advantage anticipated’ from the attack.31

Before turning to the relevant law, it is essential to distinguish leadership strikes from assassination. Assassination (as a LOIAC term of art) involves ‘treacherously’ killing or wounding the enemy, as in feigning protected status to kill a specific individual.32 The technique employed, not the targeting of an individual, is determinative. LOIAC expressly prohibits assassination.33 Whether or not a leader may be attacked depends on his or her status. Recall that Article 51.2 of API prohibits attacks on the civilian population, including individual civilians. Article 51.3 limits this protection by noting ‘[c]ivilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.’ The first question, then, is who qualifies as a civilian. In Article 50, API I defines civilians as those who are not combatants under Article 4 of the Third

28

Woodward 2004, Chap. 35. Van Voorst 1990, 55. 30 Lord Robertson 2000, at 13. Even when NATO struck Slobodan Miloševic´’s residence there was very little concern expressed. Graham 1999. 31 Human Rights Watch 2003, 20. 32 1907 Hague Regulations, supra n. 5, Article 23(b). 33 Assassination was forbidden as early as 1863. Lieber Code, supra n. 4, Article 148. On assassination in armed conflict, see Schmitt 1992; Parks 1989. 29

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Geneva Convention of 1949 and Article 43 of API.34 Combatants include members of the armed forces35; militia, volunteer corps, or members of an organized resistance commanded by a person responsible for subordinates and who wear a distinctive sign or uniform, carry weapons openly, and are subject to a disciplinary system capable of enforcing LOIAC; and members of a levée en masse.36 Personnel of paramilitary or armed law enforcement agencies become combatants whenever their organization has been incorporated into the armed forces, so long as there has been formal notification to the other side.37 Leaders who fall within one of these categories are generally lawful targets. This applies not only to those who are typically uninvolved in military operations, such as judge advocates, but also to national leaders who have ‘military status.’38 There is no LOIAC exemption for particular leadership positions, such as head of State. But surely all national leaders who occupy a position at the top of the military chain of command—whether legislative, constitutional, or de facto—are not targetable members of the armed forces. If this were the case, compliance with the core democratic principle of civilian control of the military would render most national leaders subject to attack. Moreover, some occupy purely ceremonial positions. For example, Queen Elizabeth II is Commander-in-Chief of the British military, and, for purely historical reasons, British officers swear an oath of allegiance to her. But she plays no part in military decision-making. Some leaders are, however, unquestionably members of the military in both fact and name. The evaluation must be conducted on a case-by-case basis. Wearing a uniform, having a military title or rank, and carrying weapons constitute strong combatant status indicators. Of greater weight is the extent and scope of decisionmaking authority. If the leader makes decisions regarding the conduct of hostilities at the tactical or operational level, he or she is performing combatant functions. For instance, Saddam Hussein clearly qualified as a military officer. He wore a uniform, was armed, and directed combat operations. Such individuals are targetable combatants. On the other hand, making strategic level decisions such as whether and when to initiate hostilities or engaging in political coalition building does not, standing alone, suffice. As an illustration, although the US Constitution designates the President as the Commander-in-Chief, involvement of individual wartime 34

GCIII, supra n. 7, Article 4A(1)and(2); API, supra n. 1, Article 43.1. Except medical and religious personnel. API, supra n. 1, Article 43.2. 36 A levée en masse consists of ‘inhabitants of a non-occupied territory, who on approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units’ GCIII, supra n. 7, Article 4A(6). 37 API, supra n. 1, Article 43.3. 38 The Rome Statute specifically makes them subject to prosecution, another indication that humanitarian law carves out no special regime for heads of State. Rome Statute, supra n. 8, Article 27. On targeting heads of States, see also Wingfield 1999; Weinberger 2001, at 21; Turner 2003; Canestaro 2003; Beres 2003. 35

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Presidents in military decision-making has varied widely.39 President Bush approved operational plans for Operations Enduring Freedom and Iraqi Freedom. Such activities arguably rendered him a valid target. Heads of State who are less involved in day-to-day military decisions may not fall into this category. More problematic are those who are not members of the armed forces or serving as de jure leader of the nation’s military effort, but who are somehow otherwise involved with military matters. For instance, Parliaments often control the military budget, civilian ministries may manage war material production, and intelligence agencies are regularly staffed with civilians. Indeed, individuals may wield great influence over military matters through such unofficial factors as political, party, or family ties. The issue is direct participation. Pursuant to Article 51.3 of API and customary international law, direct participation results in a loss of immunity from attack.40 The official ICRC Commentary explains that ‘[d]irect participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity takes place.’41 It further describes direct participation as ‘acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.’42 Any member of the enemy leadership (or anyone else for that matter) who is directly participating in hostilities may be attacked. Thus, at least in international armed conflict, there is no juridical valence to the politically charged term ‘targeted killings’. Analysis is simpler. Leaders who either qualify as a combatant or directly participate in hostilities amount to legitimate targets. Application of the direct participation guidelines in concrete cases is a source of much contention, particularly as civilians increasingly perform functions that were traditionally the province of uniformed personnel. Some experts urge a restrictive interpretation, one that shields the greatest number of such civilians from attack as direct participants. Others take the opposite view, arguing that humanitarian ends are best served by bright-line standards that restrict civilian involvement in conflict. Both positions make sense. Elsewhere, this writer has suggested that direct participation is best judged through an assessment of the criticality of the acts the civilian performs to the direct application of violence against the enemy forces.43 Gathering, analyzing, and disseminating intelligence offers an excellent illustration of this approach. Strategic-level geopolitical estimates have few immediate effects on current combat operations. By contrast, tactical and operational level intelligence lies at the heart of

39

US Constitution, Article II, s 2, cl 1. The ICRC’s Customary International Humanitarian Law Study cites this principle as customary. Henckaerts and Doswald-Beck 2005, Rule 6. 41 Commentary, supra n. 3, para 1678. 42 Ibid., para 1942. 43 Schmitt 2005, pp. 534–535. On the topic, see also Schmitt 2004a, p. 505. 40

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the battle.44 It is often the difference between immediate victory and defeat on the battlefield. Arguably, civilians involved in the former would not be directly participating in hostilities, whereas those performing functions related to the latter would fall within the ambit of direct participation. In the end, a case-by-case evaluation is necessary when assessing civilian leadership actions that might amount to direct participation.45

5.2.5 Meaning of the Term ‘Attack’ As noted, Article 48 of API prohibits directing ‘military operations’ against other than military objectives. Does this standard prohibit any operation targeting civilians or civilian objects? Clearly not, for it is well accepted that propaganda and other psychological operations directed at the enemy population are lawful methods of warfare. 44

The Department of Defense’s Dictionary of Military and Associated Terms offers the following definitions for the levels of war: Strategic Level of War: The level of war at which a nation, often as a member of a group of nations, determines, national or multinational (alliance or coalition) security objectives and guidance, and develops and uses national resources to accomplish these objectives. Activities at this level establish national and multinational military objectives; sequence initiatives; define limits and assess risks for the use of military and other instruments of national power; develop global plans or theater war plans to achieve these objectives; and provide military forces and other capabilities in accordance with strategic plans. Operational Level of War: The level of war at which campaigns and major operations are planned, conducted, and sustained to accomplish strategic objectives within theaters or other operational areas. Activities at this level link tactics and strategy by establishing operational objectives needed to accomplish the strategic objectives, sequencing events to achieve the operational objectives, initiating actions, and applying resources to bring about and sustain these events. These activities imply a broader dimension of time or space than do tactics; they ensure the logistic and administrative support of tactical forces, and provide the means by which tactical successes are exploited to achieve strategic objectives. Tactical Level of War: The level of war at which battles and engagements are planned and executed to accomplish military objectives assigned to tactical units or task forces. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and to the enemy to achieve combat objectives.

Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1-02, as amended through May 9, 2005 http://www.dtic.mil/doctrine/jel/doddict/. 45 The case-by-case approach is adopted in NWP 1-14M, supra n. 9, para 11.3. The International Criminal Tribunal for the Former Yugoslavia came to the same conclusion: It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in hostilities at the relevant time. Prosecutor v Tadic Case No IT-94-1-T, (ICTY 1997) para 616. The issue was crimes against persons taking no direct part in hostilities.

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A careful reading of API, as well as an understanding of the State practice that informs customary international law, reveals that only ‘attacks’ against the civilian population are forbidden. Most significantly, nearly all of Article 48’s derivative prohibitions are expressed in terms of attacks: ‘the civilian population as such, as well as individual civilians, shall not be the object of attack’; ‘civilian objects shall not be the object of attack’; ‘indiscriminate attacks are forbidden’; ‘attacks shall be limited strictly to military objectives’; and so on.46 Definition of the term is, therefore, essential, for an operation not amounting to an attack will fall beyond the reach of the LOIAC prohibitions. As noted, Article 49.1 of API describes attacks as ‘acts of violence against the adversary, whether in offence or in defence.’ Other provisions suggest that violence of some sort is a ‘prerequisite’. Article 51.1 sets forth the rule that the ‘civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.’ ‘Acts or threats of violence the primary purpose of which is to spread terror among the civilian population’ are forbidden in Article 51.2. And even the ICRC Commentary on the word ‘operation’ states that the reference is to ‘military operations during which violence is used.’47 But does violence refer to the means (weapon) used or to the consequences caused? This issue surfaces most overtly in the context of computer network attack and other forms of information warfare. The transmission of malicious computer code is certainly not ‘violent.’ On the other hand, computer network attacks can be deadly and destructive. Imagine the results of shutting down an air traffic control system, a municipal water treatment plant, or a nuclear reactor’s cooling system through computer network attack. Bearing LOIAC’s humanitarian ends in mind, the term ‘attack’ logically includes all acts that cause violent consequences, i.e. death or injury to civilians (including significant human physical or mental suffering)48 or damage to, or destruction of, tangible civilian objects. Perhaps loss of assets that are directly transferable into tangible property, such as money or stocks, should also be covered by the prohibition. But inconvenience, harassment, or mere diminishment in quality of life would not suffice. Other API provisions support the portrayal of attacks as acts causing death, injury, damage, or destruction. The rule of proportionality evaluates prospective military advantage in light of ‘loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof.’49 Attacks causing ‘widespread, longterm, and severe damage’50 to the environment are restricted, as are those against

46

API, supra n. 1, Articles 51.2, 52.1, 51.4, and 52.1. Commentary, supra n. 3, para 1875. 48 It is reasonable to include human suffering in the meaning based on the fact that API prohibits causing terror, also a mental condition. API, supra n. 1, Article 51.2. 49 Ibid., Articles 51.5(b); 57.2(a)(iii); 57.2(b). 50 Ibid., Articles 35.3 and 55.1. 47

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dams, dykes, or nuclear electrical generating stations resulting in ‘severe losses among the civilian population.’51 This interpretation is not universally accepted. Some experts take the view that death, injury, damage, or destruction need not occur for an operation to rise to the level of a prohibited ‘attack.’ They very perceptively point to the fact that the definition of military objective in Article 52.2 refers not only to destruction, but also capture and neutralization. Based on this fact, one commentator has concluded ‘the mere disabling of an object, such as shutting down of the electricity grid, without destroying it should be qualified as an attack as well.’52 The reference to neutralization, so the argument goes, envisages operations that have no destructive consequences. The present writer disagrees with this analysis. There is no indication in the ICRC Commentary that the reference to neutralization necessarily implies the absence of death, injury, destruction, or damage. More to the point, Article 52.2 merely sets forth those categories of objects that qualify as military objectives. The issue is what can be attacked, not how or with what consequences. Once an object qualifies, it may be attacked in any manner not violating related norms (such as proportionality or precautions in attack). True, the definition is applied in conjunction with the Article 52.1 prohibition on attacking civilian objects, which are defined as objects other than military objectives. But once an object fails to qualify as a military objective, the prohibitions are all framed in terms of ‘attacks’, a term expressly defined. The reference to neutralization in Article 52.2 has nothing to do with the meaning of attack.

5.3 Proportionality Additional Protocol I, in Articles 51 and 57, first codified the rule of proportionality, which derives from the principle of distinction. Once a target has been determined to be a military objective, the planned attack must still be proportionate. In other words, it is prohibited to mount an attack that ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’53 Today, the rule of proportionality is 51

Ibid., Article 56.1. Dörmann 2004, at 4. 53 API, supra n. 1, Articles 51.5(b), 57.2(a)(iii), 57.2(b). The Conventional Weapons Convention (Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects) cites proportionality in relation to the indiscriminate placement of weapons in both the original 1980 Protocol II on the Use of Mines, Booby Traps and Other Devices [Article 3.3(c)] and in the 1996 Amended Protocol II on the same subjects [Article 3.8(c)]. Along the same lines, Article 7(c) of the 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict forbids attacks that may cause incidental damage to cultural property protected under the Convention that would be ‘excessive in relation to the concrete and direct military advantage anticipated’. 52

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undoubtedly an element of customary international law, a fact highlighted by Judge Rosalyn Higgins in her Dissenting Opinion in the Nuclear Weapons case.54

5.3.1 Application of the Rule of Proportionality While the rule is easily stated, there is no question that proportionality is among the most difficult of LOIAC norms to apply. First, and perhaps foremost, there is the inherent difficulty of valuation. How does one, for instance, compare tanks destroyed to the number of serious civilian injuries or deaths caused by attacks upon them? Dissimilar entities cannot be compared absent a common currency of evaluation. And basic dissimilarity is exacerbated by the fact that differently situated parties will inevitably value specific collateral damage and incidental injury on the one hand, and military advantage on the other, differently. An apt example is the environment. Consensus exists that environmental damage constitutes collateral damage. Yet, the perceived ‘value’ of the environment will vary widely from country to country, culture to culture, vocation to vocation, and so forth.55 Complicating matters is pervasive confusion over how to conduct the proportionality ‘test’. Many wrongfully characterize it as balancing, i.e. does the concrete and direct military advantage ‘outweigh’ resulting collateral damage and incidental injury? If so, attack is permitted; if not, it is forbidden. The test is often portrayed as a scale, with the slightest difference tipping the balance. In fact, the test is one of ‘excessiveness.’ The rule only bans attacks in which there is no proportionality at all between the ends sought and the expected harm to civilians and civilian objects. The Rome Statute’s addition of the adjective ‘clearly’ to ‘excessive’ in its articulation of the proportionality rule (as a war crime standard) reflects this interpretation.56 Focusing on excessiveness avoids the legal fiction that collateral damage, incidental injury, and military advantage can be precisely measured. Ultimately, the issue is reasonableness in light of the circumstances prevailing at the time…. and nothing more. A second misconception surrounds the significance of the actual collateral damage and incidental injury that ends up being caused by an attack, as well as the military advantage that the attacker actually achieved. The misconception has reached the point that merely causing collateral damage or incidental injury is sometimes viewed as prima facie evidence that an attacker engaged in a disproportionate attack, failed to take requisite precautions in attack, or otherwise violated LOIAC. Stated differently, some imply that causing collateral damage and

54

Nuclear Weapons, supra n. 2, at 587 (dissenting on unrelated grounds); Henckaerts and Doswald-Beck 2005, Rule 14. See also inclusion by US in NWP 1-14M, supra n. 9, para 8.1.2.1. 55 See Schmitt 1997. 56 Rome Statute, supra n. 8, Article 8.2(b)(iv).

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incidental injury creates a rebuttable presumption of a LOIAC violation, in which the attacker bears the burden of persuasion.57 In fact, the harm resulting and advantage achieved have little to do with application of the proportionality rule, for compliance is measured not by the results of an attack, but rather by what the attacker reasonably expected before launching it. This is true as to both the collateral damage and incidental injury (note the word ‘expected’ in the standard) and the ensuing concrete and direct military advantage (note the term ‘anticipated’).58 The rule represents an important acknowledgement of the ‘fog of war,’ and, more generally, implementation of the premise that the law should balance humanitarian concerns with military necessity and reality. But it also complicates assessment of compliance, for the results of an attack are often tangible and measurable, whereas expectations are not. A recurring hurdle in application of the proportionality rule surfaces whenever the prohibitory standard is mischaracterized as extensive, rather than excessive, collateral damage and incidental injury. The ICRC Commentary illustrates the problem to some extent. The idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the Protocol; in particular it conflicts with Article 48 ‘‘(Basic rule)’’ and with paras 1 and 2 of the present Article 51. The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.59

There is no basis in the text of either Article 51 or 48, or even in customary international law, for this assertion. On the contrary, such an interpretation, which ignores the degree of military advantage yielded by a given operation, flies in the face of the Commentary’s own assertion that ‘[t]he entire law of armed conflict is, of course, the result of an equitable balance between the necessities of war and humanitarian requirements.’60 Further, it is inconsistent with the International Court of Justice’s refusal to rule out the possibility that use of nuclear weapons might comply with LOAIC when the survival of the State is at stake.61 Another knotty aspect of proportionality is the scope of the ‘concrete and direct military advantage’ criterion. The ICRC Commentary notes that the phrase ‘was

57

For a discussion of this tendency, see Schmitt 2003. Actual collateral damage and incidental injury, as well as actual military advantage, may assist an ex post facto assessment (e.g. by a tribunal) to infer what it was that the individual making the proportionality determination anticipated (or should have anticipated). 59 Commentary, supra n. 3, para 1980. 60 Ibid., para 2206, which discusses proportionality in the context of API, Article 57. 61 Specifically, the Court opined that it could not ‘conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.’ Nuclear Weapons, supra n. 2, para 105E. The present writer finds the decision flawed in its assessment of the proportionality rule, but even accepting the opinion leads to the conclusion that very extensive collateral damage and incidental injury are justified in some cases. See Schmitt 1998. 58

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intended to show that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.’62 Based in part on this statement, many interpret the standard narrowly, arguing that the only advantage that should be considered is that directly bearing on the ongoing battle. On the other side are those who (correctly in this writer’s opinion) urge that while it must be perceptible and meaningful, ‘the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.’63 The UK took precisely this position when it ratified API in 1998. Further support is found in the Rome Statute, which refers to ‘overall military advantage’ when setting forth the rule of proportionality.64 Simple logic dictates that this has to be the case. Consider air attacks intended to convince enemy forces that a ground assault will fall in Sector A. In fact, they constitute a ruse of war intended to draw enemy forces from the intended area of attack, Sector B. The destruction of the enemy forces in Sector A will have little impact on the immediate battle and, standing alone, would excuse only slight collateral damage or incidental injury. But, if the ruse is successful, enormous military advantage will result, advantage that would justify significant collateral damage and incidental injury. Of course, the advantage considered must be military in nature. Political or economic advantages do not justify collateral damage and incidental injury. In this sense, military advantage in the context of the rule of proportionality tracks use (discussed above) of the phrase vis-à-vis military objectives. The must be a nexus to the conduct of hostilities. But to what extent must the collateral damage and incidental injury considered in proportionality assessments be direct, i.e. caused directly by the kinetic effects of the weapon? For instance, shutting down an electrical grid will deprive military entities reliant thereon of essential power. At the same time, and as strikes on electrical networks during Operations Desert Storm and Allied Force demonstrated, attacks against ‘dual-use’ entities will often have effects that ripple beyond the target itself, thereby affecting civilians who depend on them. In the aftermath of these two conflicts, controversy arose over the extent to which those who plan and approve attacks are obliged to estimate and consider civilian consequences other than those caused by the weapon’s immediate destruction (often styled ‘reverberating’ effects). However, it now appears well settled that any consequences, even long-term ones, which are foreseeable and likely in light of the information reasonably available to the attacker, must be factored into the proportionality calculation. Stated conversely, those who plan or execute attacks need not take into account every possible consequence, however

62

Commentary, supra n. 3, para 2209. UK, Statement Made on Ratification of Additional Protocol I (28 Jan 1998) reprinted in Documents on the Laws of War (Adam Roberts and Richard Guelff (eds) (3rd edn OUP Oxford 2000) 511. 64 Rome Statute, supra n. 8, Article 8.2(b)(iv). 63

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remote, but must consider foreseeable and likely ones. Case-by-case analysis is required. Occasionally, the extent of the duty to attempt to foresee reverberating effects is questioned. However, the duty is based on ‘feasibility’, an issue discussed below in the precautions in attack section.

5.3.2 ‘Force Protection’ and Proportionality Calculations This issue surfaced most notably during Operation Allied Force, when NATO aircraft were instructed to fly above the threat envelope of Serbian air defences. Human Rights Watch, inter alia, questioned the tactic, suggesting ‘if precision would have been greater (and civilian casualties lessened) had NATO pilots flown lower, it could be argued that NATO was ‘obligated’ to have its pilots fly lower.’65 The organization focused particular attention on the Djakovica Road incident, during which Albanian refugees were mistaken for a convoy of Serbian military forces. It concluded that because ‘higher altitude seems to have impeded a pilot from adequately identifying a target… inadequate precautions were taken to avoid civilian casualties.’ By contrast, the review conducted by ICTY found that while operating at lower altitude would have improved the likelihood of avoiding the mistaken attack, ‘neither the aircrew nor their commanders displayed the degree of recklessness in failing to take precautionary measures which would sustain criminal charges.’66 It is not the purpose here to resolve this case or, more generally, the tactic of attacks from altitude (although it should be noted debates on the subject are often vacuous, evidencing ignorance of such basic aspects of aerial warfare as the fact that guided weapons tend to become more accurate with altitude and distance because they have greater opportunity to guide). Rather, the question is whether it is permissible to take own-forces survival into consideration when deciding if, when, and how attacks may be mounted. In this regard, many LOIAC experts argue that it is appropriate to consider survival of the combatant (e.g. aircrew member) and weapon system (e.g. aircraft) as an element of the military advantage accruing from an attack. It is not so much the life of the pilot that formally factors into the proportionality calculation (since the concern is military vice humanitarian) as it is the ability to conduct future attacks. While the ICRC Commentary speaks of ‘ground gained’ or ‘annihilating or weakening the enemy armed forces,’67 limiting the term military advantage to such narrow issues would be overly restrictive, particularly in light of the accepted interpretation that overall military advantage is considered in proportionality analysis, not just that resulting immediately and directly from an attack. Opponents of this approach argue that if it is appropriate to factor force protection into the military advantage calculation, then, to be consistent, one must 65 66 67

Human Rights Watch 2000. Report to the Prosecutor, supra n. 18, para 70. Commentary, supra n. 3, para 2218.

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subtract from advantage when attacking forces are likely to be lost during the mission. By this approach, the greater the casualties suffered in an attack, the less the military advantage. At first glance, this argument is attractive. But consider the result—the more a combatant places him or herself at risk, the fewer incidental injuries and less collateral damage he or she can cause in an operation. The dynamic would generate a disincentive to taking risks to avoid civilian harm, thereby disrupting LOIAC’s balance between humanitarian and military concerns. A better argument is that force protection constitutes a precautions in attack issue, not one of proportionality. As shall be discussed, one precautionary requirement is that those who plan or decide upon an attack ‘take feasible precautions’ when choosing means or methods of attack in order to minimize civilian harm.68 Feasibility is, of course, a matter of reasonableness in light of all the prevailing circumstances. Such circumstances certainly include survival of the attacker and the weapons system involved. Logic dictates that a sliding scale exists along which precautions become less feasible the greater the risk assumed in the operation. Thus, for example, in beyond visual range attacks, the determinative question is usually not how much the attacker’s survival offsets collateral damage and incidental injury (such that the latter were not excessive), as it is whether the attack was ‘reasonable’ under the circumstances. The present writer finds both approaches valid and applicable. As a practical matter, the first question is whether civilian harm was excessive relative to the concrete and direct military advantage anticipated, excluding survival of the combatant and weapon system. If not, then the question becomes the extent to which the methods (tactics) and means (weapons) of attack reasonably limited harm caused to civilians and their property. Survival is a valid factor in the assessment. Thus, it is only in cases where collateral damage and incidental injury are excessive (a very subjective standard) that one must further factor in the military advantage that is inherent in combatant and weapon system survival.

5.3.3 The Effect of Human Shields on the Rule of Proportionality The use of civilians or civilian objects to shield military objectives is known as counter-targeting. Counter-targeting is most often employed when an adversary fields forces against which it is difficult to defend; it is a perverse response to battlefield asymmetry. The technique was pervasive during the combat phase of OIF. For instance, Iraqi forces, especially the paramilitary Fedayeen, often took cover in locations where civilians were present, including schools and religious and cultural buildings. A common technique was to drive close to civilian vehicles whenever

68

API, supra n. 1, Article 57.2(a)(ii).

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Coalition helicopters appeared. Iraqi forces also forcibly used civilians, including women and children, to physically shield their actions.69 API, Article 51.7, expressly prohibits the use of human shields: ‘[t]he presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations.’70 The prohibition reflects customary law,71 a fact demonstrated by the wide condemnation of the practice whenever it is employed.72 But how do human shields factor into the proportionality equation? A distinction must be made between voluntary and involuntary shields. With regard to the former, there are two schools of thought. The first holds that voluntary shields are civilians who must be factored into the proportionality analysis if they are likely to be injured or killed during the attack on the military objective they are shielding.73 The crux of the argument is that such individuals have not engaged in the only activity by which they forfeit their protected status, direct participation in hostilities. The countervailing argument, and in this writer’s opinion the better one, characterizes their actions as direct participation.74 By shielding valid targets, they 69

Purdum 2003, 1; Filkins 2003, 5. 1 MEF Roots Out Paramilitaries, Destroys Several Ba’ath Party Headquarters, US Central Command News Release 03-04-13 (1 April 2003). 70 This prescription tracks that found in the 1949 Fourth Geneva Convention, Article 28: ‘The presence of a protected person may not be used to render certain points or areas immune from military operations.’ The prohibition only applies vis-à-vis those who ‘find themselves… in the hands of a Party, to the conflict or Occupying Party of which they are not nationals’. It would not apply to Iraqi forces using Iraqis as shields. GCIV, supra n. 7, Article 4. 71 Henckaerts and Doswald-Beck 2005, Rule 97. See also NWP 1-14M, supra n. 9, para 11.2; Rome Statute, supra n. 8, Article 8.2(b)(xxiii). 72 The UN General Assembly condemned Iraq’s use of human shields during the first Gulf War as a ‘most grave and blatant violation of Iraq’s obligations under international law’. UNGA Res. 46/134 (17 Dec 1991). In May 1995, Bosnian Serbs seized United Nations Protection Force (UNPROFOR) peacekeepers and used them as human shields against NATO airstrikes. The UN Security Council condemned this action, demanded release, and authorized the creation of a rapid reaction force to handle such situations. UNSC Res 998 (16 June 1995). 73 See, e.g. Human Rights Watch 2002. 74 The distinction is embraced by the United States. See, e.g. a Pentagon briefing on the subject. And then, the other target category that is a challenge for us is where the human shields that we’ve talked of before might be used. And you really have two types of human shields. You have people who volunteer to go and stand on a bridge or a power plant or a water works facility, and you have people that are placed in those areas not of their own free will. In the case of some of the previous use of human shields in Iraq, Saddam placed hostages, if you will, on sensitive sites in order to show that these were human shields, but, in fact, they were not there of their own free will. Two separate problems to deal with, and it requires that we work very carefully with the intelligence community to determine what that situation might be at a particular location. Department of Defense, Background Briefing on Targeting, 5 March 2003 http:// www.defenselink.mil/news/Mar2003/t03052003_t305targ.html.

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create a de facto defence against attack that may, in an era when civilian casualties become instant global news, be more effective than kinetic defences. Of course, once voluntary shields take on direct participant status, they qualify as military objectives.75 And if they can be directly targeted, it would be inconsistent to suggest their wounding or death constitutes incidental injury. Think of the alternative. If harm to voluntary shields constituted incidental injury, a sufficient number of shields could, pursuant to the rule of proportionality, provide military objectives an absolute defence as a matter of law. This is the point missed by those who argue, in an elevation of form over substance, that voluntary shields are not direct participants because they are not employing force to protect the shielded target. Many taking this position are equally uncomfortable with the notion of voluntary shields as military objectives. The concerns are overstated. Why would an attacker choose to strike the shields rather than the target itself? Of course, there are plausible scenarios, such as attempting to scare away a group of shields by shooting one of them (an arguably humanitarian result), but the economy of force principle of war usually augurs against targeting the shields themselves. More problematic from a legal perspective are involuntary shields. Three approaches exist. Some suggest that it is inappropriate to factor involuntary shields into the proportionality calculation at all, for if they are considered, the enemy will profit from what is a clear LOIAC violation. This represents an extreme view that has, fortunately, gained little traction. The sole basis for excluding civilians from a proportionality analysis is direct participation, which includes an element of intent. The duress inherent in being forced to act as a shield excludes the mens rea of intent.76 More compelling is an argument that harm to involuntary shields factors into the incidental injury calculation, but is somehow discounted in value. As noted by one commentator, ‘the actual test of excessive injury to civilians must be relaxed…. [S]hould civilian casualties ensue from an illegal attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent State placing innocent civilians at risk.’77 His rationale is logical: ‘A belligerent State is not vested by LOIAC with the power to block an otherwise

75

Recall API, 51.3. The Rome Statute adopts this standard by making it a war crime to intentionally attack civilians unless they are ‘taking direct part in hostilities’. supra n. 8, Article 8 2(b)(i). 76 Ibid., Article 31.1(d). 77 Dinstein 2004, p. 131.

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legitimate attack against combatants (or military objectives) by deliberately placing civilians in harm’s way.’78 The position is supported by numerous eminent practitioners and scholars.79 This writer adopts a third approach, that involuntary human shields are fully included in the incidental injury estimation. Most significantly, Article 51.8 of API provides ‘[a]ny violation of these prohibitions [includes the prohibition on shielding] shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians….’ Admittedly, there are situations in which protected objects lose protection due to the enemy’s misconduct. For instance, a hospital housing combatants may be attacked, once a warning to desist has been ignored.80 Similarly, the law of reprisal, albeit limited and controversial, permits one side to commit LOIAC violations to pressure the other side, which is itself violating LOIAC, into compliance with the law. But reprisals are only temporarily acceptable LOIAC violations, not a relaxation of the rules. Nor has anyone pointed to any specific prescription contemplating relaxation of the proportionality calculation. Regardless of whether Article 51.8 represents customary international law or not, the case has not been made for a customary law caveat to the rule of proportionality. In this writer’s estimation, to relax the incidental injury calculation for involuntary shields would be to enter upon a normative slippery slope. What else merits differing treatment under the rule of proportionality? Suggestions that malevolent societies deserve different treatment under LOIAC have already been rejected above as misguided lex ferenda. But even if the premise was lex lata, the cruel truth is that malevolent actors in the societies referred to are the least likely to find themselves as involuntary shields. On the contrary, recall Saddam Hussein’s use of foreigners, including children, as shields prior to the launch of Operation Desert Storm. Consider the use of UNPROFOR peacekeepers as shields in 1995 by the Bosnian Serbs. What if the conflict is being fought to protect a particular ethnic group, such as the Kosovar Albanians during OAF? Is it sensible to suggest that their value should somehow be adjusted downward even though they are already targets of abuse? These examples illustrate the point that equalizing the fighting

78 79

Ibid., The author cites in support Parks 1990, pp. 162–163. E.g. APV Rogers has suggested that: … a tribunal considering whether a grave breach has been committed [a disproportionate attack] would be able to take into account when considering the rule of proportionality the extent to which the defenders had flouted their obligation to separate military objectives from civilian objects and to take precautions to protect the civilian population… the proportionality approach taken by the tribunals should help to redress the balance which would otherwise be tilted in favour of the unscrupulous.

Rogers 2004, p. 129. 80 See, e.g. API, supra n. 1, Article 13.

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position of belligerents is not an underlying purpose of LOIAC. Rather, the law seeks to balance humanitarian concerns with military necessity; that dynamic is the essence of the law of proportionality. Although this debate has animated academic and policy circles, it is unlikely to play itself out in any meaningful way on the battlefield. There is simply no way to operationalize the proposed relaxation. It is already very difficult to apply the ‘excessive’ standard in practice. To suggest that this elusive term can be further refined when involuntary shields are involved is unrealistic. The judge advocate making such an assertion to a war-fighting commander or trying to explain how to apply it to the crew of an attack aircraft will find him or herself quickly marginalized in the mission planning process.

5.4 Precautions in Attack Even if an attack against a valid military objective can be conducted proportionately, it must nevertheless comply with certain precautionary requirements designed to limit collateral damage and incidental injury. Article 57 of API codifies these requirements for contracting States.81 And, as recognized by the ICTY in the Tadic judgment, customary law also includes precautionary requirements. The appellate chamber approvingly cited UN General Assembly Resolution 2675’s admonishment that ‘in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations,’ styling the resolution ‘declaratory of the principles of customary international law.’82 The precautions in attack norms obligate attackers to take all feasible precautions to minimize harm to civilians and civilian objects. Those who plan, approve, and execute an attack must do everything feasible to verify that targets are neither civilians nor civilian objects, or otherwise subject to special protection; select from among feasible methods or means of warfare so as to minimize danger to civilians and civilian objects; cancel or suspend attack if it becomes apparent that the target is not a military objective or the rule of proportionality would be breached; and,

81

A provision requiring all feasible precautions to be taken to protect civilians can also be found in Article 3.10 of Amended Protocol II to the Conventional Weapons Convention, which in itself repeats a provision contained in Article 3.4 of its original Protocol II. In addition, a similar provision can be found in relation to cultural property in Article 7(b) of the Second Protocol to the Hague Cultural Property Convention. 82 International Criminal Tribunal for Yugoslavia, Prosecutor v Tadic Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Appeals Chamber Case IT-94-1 (2 Oct 1995) paras 111–112, citing UN GA Res 2675 (XXV), Basic Principles for the Protection of Civilian Populations in Armed Conflicts (9 Dec 1970). The resolution was adopted with a vote of 109-0, with 18 abstentions/absences.

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whenever a reasonable choice is available between multiple military objectives for obtaining a similar military advantage, select that expected to minimize the risk to civilians and civilian objects.83

5.4.1 Meaning of ‘Feasible’ Global media passion for images of armed conflict has combined with exaggerated expectations regarding the ability of high-tech weaponry to conduct precision warfare to create the impression that modern warfare may be conducted with little to no collateral damage and incidental injury. Sadly, such capabilities remain beyond the reach of even well-equipped militaries.84 Despite this reality, when incidental injury and collateral damage occur, many critics, as suggested above, seem to apply a rebuttable presumption that the cause was failure to take adequate precautionary measures. A particular tendency, evidenced in the HRW report Off Target, is alleging failure without citing feasible precautions the attacker neglected.85 This is curious. When the target qualifies as a military objective, the attack is proportionate as planned, and the method of execution violates no specific rules regarding indiscriminate attack,86 the precautions in attack requirements only apply if there are alternatives available to the attacker. The nub of the issue, then, is whether feasible precautions were taken.87 ‘Feasible precautions’ have been defined as ‘those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.’88 In the context of target verification, for example, review of intelligence and target data is required, so long as it is reasonably available at the relevant time. Another factor is availability of systems that perform intelligence, surveillance, and reconnaissance functions. For instance, combat reconnaissance aircraft are in short supply. 83

For an assertion these requirements amount to customary law, see Henckaerts and DoswaldBeck 2005, Chap. 5. For implementation in a Protocol Additional I non-Party’s military manual, see NWP 1-14M, supra n. 9) para 8.1.2.1. 84 Recall the mistaken bombing by US aircraft of a marked ICRC facility in Afghanistan (on two separate occasions) during Operation Enduring Freedom. For a discussion of the incidents, see Murphy 2002, p. 247. 85 For instance, the organization criticized the decapitation campaign on this basis without setting forth alternatives to the tactics and weaponry employed by the Coalition. See discussion in Dinstein 2004. 86 Such as by treating ‘as a single military objective a number of clearly separate and distinct military objectives.’ API, supra n. 1, Article 51.5(a). 87 One author has noted ‘Palpably, no absolute certainty can be guaranteed in the process of ascertaining the military character of an objective selected for attack, but there is an obligation of due diligence and acting in good faith’, Dinstein 2005, p. 211, citing Bothe 2001, 45. 88 Conventional Weapons Convention, Amended Protocol II (n 9) Article 3.10.

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If attack is delayed until imagery is available, mobile targets may have moved on. Or the intelligence, surveillance, and reconnaissance systems that could provide additional information about the target may be tasked against higher priority assets (higher because of military value or due to greater risk of collateral damage and incidental injury). In the end, feasibility means that those who plan, approve, or execute an attack must take those measures that a reasonable warfighter in same or similar circumstances would take to limit harm to civilians––nothing more. As in the case of proportionality, a controversial factor vis-à-vis feasibility is force protection. The ICRC Commentary rejects consideration of ‘circumstances relevant to the success of military operations as an appropriate consideration…’ It goes on to note that ‘[i]t is not clear how the success of military operations could be jeopardized by this.’89 In fact, it is quite clear to anyone with an understanding of combat operations. For example, it would plainly jeopardize the success of a military operation to fly at altitudes within the threat envelope of enemy defensives in order to get a better visual identification of a target. As noted earlier, this writer adopts the position that force protection is an appropriate consideration when assessing feasibility. A critical issue regarding feasibility is the effect of doubt about a target’s status as a military objective. If doubt persists before the attack is launched, must the mission be cancelled or aborted? Some experts say yes, pointing to Article 52.3 of API, which provides that ‘[i]n case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make effective contribution to military action, it shall be presumed not to be so used.’ The commentary to Article 57 provides further support by noting that ‘in case of doubt, even if there is only slight doubt, [those who plan or decide upon attack] must call for additional information.’90 According to this school of thought, verification mechanisms must be exhausted in an attempt to eradicate doubt; if doubt persists, the attack is prohibited. Article 52.3 was controversial at the time of its inclusion in API and cannot be said to have matured into customary law.91 In the event, it applies only to ‘normally dedicated’ objects and, thus, would not apply, for example, to buildings near the frontline, which are typically used for defensive purposes.92 Moreover, it would not apply in cases of persistent misuse by the enemy. For example, in the battle for Fallujah, Iraqi forces used 60 of the city’s 100 mosques for storage of weapons and/or as fighting positions.93 Obviously, when over half the objects in

89

Commentary, supra n. 3, para 2198. Ibid., para 2195. 91 See discussion in ibid, paras 2029–2038. 92 This was the example used by the Rappoteur of the Working Group responsible for drafting the article. Ibid, para 2032. 93 Marine Expeditionary Force and Multi-National Corps-Iraq, Telling the Fallujah Story to the World, Briefing Slides (20 November 2004) (on file with author). 90

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question are being abused, the category no longer meets the ‘normally dedicated’ criterion. More to the point, such assertions reflect insensitivity to the realities of combat, in which the Clausewitzian fog of war often looms thick. The persistence of friendly fire incidents in modern warfare is stark testament to fact that absolute transparency of the battlefield remains a mere aspiration. Simply put, doubt is a familiar feature of conflict; to suggest that operations cannot be mounted in the face of ‘slight doubt’ is untenable. In light of the balancing between humanitarian and military concerns in LOIAC, there is but one sensible standard: Having resorted to all reasonable means of verification in light of the prevailing circumstances, would the reasonable warfighter launch the attack? In assessing the reasonableness of proceeding in the face of doubt, the potential military advantage offered by the attack will certainly play a major role. Just as advantage offsets collateral damage and incidental injury to some degree, so it also acts as an offset to doubt (which risks collateral damage). The greater the military advantage, the more doubt will be justified. This mode of analysing feasibility applies to other aspects of the precautions in attack requirements. The bottom line is that civilian harm must be avoided whenever feasible. For instance, a night attack on a munitions factory (a method of warfare) would be required if it were empty at night and the attacker possessed the means to conduct night operations. Similarly, computer network attack (a means) increasingly offers reasonable alternatives to kinetic attack against networked command, control, and communications assets. Or, when trying to deny electrical power to an enemy military facility, it may be possible to drop carbon filaments on the electric wires (target) serving the installation instead of bombing the electrical generating facility from which they originate. The assessment of methods and means must be multi-dimensional. Is there additional risk to friendly forces? How much? How many such weapons are in the inventory? How long will resupply take? What are the competing demands for the systems involved? What are future demands likely to be?94 In other words, how reasonable is the alternative in the circumstances ruling at the time?95 Take commencement of hostilities. While it is true that widespread use of precision-guided munitions will limit collateral damage and incidental injury,

94

Comparable factors arise in Article 3.10 of Amended Protocol II to the Conventional Weapons Convention, which, when considering the protection of civilians from weapons to which the article applies, refers to ‘the availability and feasibility of using alternatives’. 95 Article 57 of API does not contain an explicit reference to the reasonableness of choices facing the attacker. However, such a condition is implicit in the term ‘feasible’ (practicable or practically possible), which appears twice in Article 57.2. Additionally, a requirement of ‘reasonable precautions’ is contained in Article 57.4 in the context of military operations at sea or in the air.

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there is no requirement to use them solely because they are available.96 At the beginning of the conflict, it may be uncertain how long hostilities will last. A reasonable commander will preserve a portion of his or her limited precisionguided munitions inventory for latter operations. Or urban operations may be in the offing, during which precision weaponry will be of great utility in avoiding collateral damage or incidental injury. Finally, when assessing precautionary requirements, it must be borne in mind that defenders shoulder certain obligations to take precautions against the effects of attack. API, Article 58, provides that they shall ‘endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; avoid locating military objectives within or near densely populated areas; [and] take other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military objectives.’97 This provision is primarily hortatory in nature. Nevertheless, attackers are entitled to take into consideration the fact that defenders have precautionary responsibilities. In other words, the attacker need not assume defenders are in breach of their obligations and, resultantly, take other than standard measures to assess the presence of civilian or civilian objects in the target area (at least absent intelligence or information offering indications to the contrary).

5.4.2 The Relativity of Precautionary Obligations De jure, belligerents have identical precautions in attack duties. However, since they are framed in terms of feasibility, the de facto obligations of the parties to a conflict are disparate—they depend on the assets available to the attacker. The high-tech attacker will be better able to verify the target, has a greater number of weapons systems to choose from, be able to execute tactics its opponent is incapable of conducting, and strike a wider array of targets due to advantages in range, stealth, and penetrability. But the fact that the attacker’s opponents cannot field comparable systems provides no excuse for the attacker doing less than is feasible. Thus, capability gaps create a form of normative relativity that engenders some resentment on the part of the belligerent bearing the greater burden. This is not healthy for LOIAC. Complicating matters is an absence of any obligation to acquire and field systems that would permit attackers to better distinguish between military objectives and civilians and civilian objects. States that have fiscal and technological

96

Some have asserted a duty to use precision munitions in certain environments, such as urban areas, or, more generally to use them whenever available. Both assertions are wrong. See, e.g. Belt 2000, p. 174; Infeld 1992, pp. 110–111. 97 See also Henckaerts and Doswald-Beck 2005, Chap. 6.

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wherewithal arguably have a moral duty to do so, but there is no basis in LOIAC for assertion of a legal duty. Thus, we see the rather strange phenomenon of States that have elected to act responsibly by acquiring discriminate systems bearing greater legal obligations than those that irresponsibly do not.

5.5 Conclusions The law governing attacks during international armed conflict contains multiple fault lines that generate either confusion or reasoned disagreement. This is unfortunate, for the greatest harm to the civilian population during hostilities comes as the result of attacks. But at the same time, the restrictions of the law of attack impose the greatest restrictions on the war-fighters in their conduct of hostilities. It is a duality that makes this body of law so critical, for the duality touches the very heart of the balance between humanitarian and military concerns that LOIAC seeks. Fortunately, the practical realities of combat, especially the principle of economy of force, render a number of the fault lines of concern primarily to legal experts. That said, others directly impact the course of battle… and the civilians who find themselves in the midst of conflict. Although States, academic institutions, and non-governmental institutions like the ICRC, have undertaken praiseworthy efforts to clarify the law, more are needed. Hopefully, prestigious institutions such as the British Institute of International and Comparative Law will continue to rise to the challenge. It is certainly to be commended for undertaking this publication.

Abbreviations ICJ

International Court of Justice

ICTY

International Criminal Tribunal for the Former Yugoslavia

LOIAC

Law of international armed conflict

NATO

North Atlantic Treaty Organization

NGO

Non-governmental organization

OAF

Operation Allied Force

OEF

Operations Enduring Freedom

OIF

Operation Iraqi Freedom

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Part III

Methods of Warfare

Chapter 6

Aerial Blockades in Historical, Legal, and Practical Perspective

Abstract This chapter examines aerial blockades, a relatively untested method of warfare. Since sea blockades have long been an element of naval warfare, historical examples of naval blockades are discussed as a means of placing aerial blockades in context. Drawing on the law of naval warfare relevant to blockades, the chapter suggests legal criteria for, and legal limitations on, the maintenance of aerial blockades. It also delves into the practical aspects of mounting such operations. The chapter concludes that aerial blockades are a useful, lawful and practical method of warfare.

Contents 6.1 Blockade Law in Historical Context ............................................................................. 6.1.1 Historical Development of Blockades ............................................................... 6.1.2 Conclusions to be Drawn Relevant to Aerial Blockades.................................. 6.2 Norms Applicable to Aerial Blockades......................................................................... 6.2.1 Application.......................................................................................................... 6.2.2 Declaration and Notice....................................................................................... 6.2.3 Access to Neutral Areas ..................................................................................... 6.2.4 Effectiveness ....................................................................................................... 6.2.5 Breach ................................................................................................................. 6.3 Aerial Blockades in Practice.......................................................................................... 6.4 Conclusions..................................................................................................................... References................................................................................................................................

217 220 234 240 241 246 248 250 252 267 278 280

Previously published in 2 US Air Force Academy Journal of Legal Studies (1991) 21.

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_6,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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The declaration of embargoes against Iraq and Kuwait by the United Nations in August and September of 1990 has focused growing attention on the possibilities and limitations of ‘‘economic’’ coercion/warfare as an instrument of foreign and military policy.1 This chapter explores the legal acceptability and tactical 1

The initial embargo is set forth in S.C. Res. 661, UN Doc. S/RES/661 (1990), reprinted in 29 I.L.M. 1325 (1990). It provides, in relevant part, that all States are to prevent: (a) the import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution; (b) any activities by their nationals or in their territories which would promote or are calculated to promote the export or transshipment of any commodities or products from Iraq or Kuwait; and any dealings by their nationals or their flag vessels or in their territories in any commodities or products originating in Iraq or Kuwait and exported therefrom after the date of the present resolution, including in particular any transfer of funds to Iraq or Kuwait for the purposes of such activities or dealings; (c) the sale or supply by their nationals or from their territories or using their flag vessels of any commodities or products, including weapons or any other military equipment, whether or not originating in their territories but not including supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the purposes of any business carried on in or operated from Iraq or Kuwait, and any activities by their nationals or in their territories which promote or are calculated to promote such sale of supply of such commodities or products… The resolution further insists that all States: … not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs… Id. at 1326. The provisional verbatim record for 661 is available at S/PV/2933 (1990). Resolution 661 complements Resolution 660 which condemned the Iraqi invasion and demanded immediate withdrawal. S.C. Res. 660, UN Doc. S/RES/660 (1990), reprinted in 29 I.L.M. 1325 (1990). In Resolution 665 the Security Council authorized the use of naval force in the implementation of 661: The Security Council… (c)alls upon those Member States cooperating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargos and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990)… S.C. Res. 665, UN Doc. S/RES/665 (1990), reprinted in 29 I.L.M. 1329 (1990). See also S/PV/2938 (1990). The embargo was extended to the aerial regime by the Security Council in Resolution 670: The Security Council… (d)ecides that all States, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any license or permit granted before the date of the present resolution, shall deny permission to any aircraft to take off from their territory if the aircraft would cany any cargo to or from Iraq or Kuwait other than food in humanitarian circumstances, subject to authorization by the Council

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feasibility of one such instrument, the aerial blockade.2 Aerial blockades have neither been attempted in the past nor considered in any systematic way by scholars or military practitioners. Given the use of an aerial embargo in the effort to force the Iraqis out of Kuwait, the study of blockade operations as extended to the aerial regime is particularly timely. Since blockade law is a highly complex, uncodified, and very dynamic component of the law of armed conflict, it is necessary at the outset to establish the parameters within which the inquiry shall proceed. First and foremost, it is essential to provide a somewhat extended definitional context for the study. Blockades are often confused with other forms of economic warfare,3 as well as with various techniques for closing off particular areas of the earth’s surface or atmosphere. To unravel the confusion requires a working definition of the term ‘‘blockade.’’ As useful as any is that employed by the United States Navy: Blockade is a belligerent operation to prevent vessels and/or aircraft of all nations enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation. A belligerent’s purpose in establishing a blockade is to deny the enemy the use of enemy and neutral vessels or aircraft to transport personnel and goods to or from enemy territory. Unlike the belligerent right of visit and search, which is designed to interdict the flow of contraband goods into enemy territory and which may be exercised anywhere outside of neutral territory, the belligerent right of blockade is intended to prevent vessels and aircraft from crossing an established and publicized cordon separating the enemy from international waters and/or airspace.4

(Footnote 1 continued) or the Committee established by resolution 661 (1990) and in accordance with resolution 666 (1990), or supplies intended strictly for medical purposes or solely for UNIIMOG. The resolution also requires States to: …deny permission to any aircraft destined to land in Iraq or Kuwait, whatever its State of registration, to overfly its territory unless: a. The aircraft lands at an airfield designated by that State outside Iraq or Kuwait in order to permit its inspection to ensure that there is no cargo on board in violation of resolution 661 (1990) or the present resolution, and for this purpose the aircraft may be detained as long as necessary; or b. The particular flight has been approved by the Committee established by resolution 661 (1990); or c. The flight is certified by the United Nations as solely for the purposes of UNIIMOG. S.C. Res. 670, UN Doc. S/RES/670 (1990), reprinted in 29 I.L.M. 1334, 1335 (1990). See also S/PV/2943 (1990). 2 The inclusion of blockade in the category of economic coercion/warfare could be questioned. For some blockades the term ‘‘coercion’’ may be inappropriate since the purpose might be to simply deprive the enemy of the means to wage war, rather than to coerce him into a particular course of action. Similarly, the term ‘‘economic’’ may be inaccurate since blockade actions may have purely military, rather than economic, objectives. Finally, the possibility of ‘‘pacific blockades,’’ (see text accompanying note 122) might render use of the term ‘‘warfare’’ incorrect. However, such fine distinctions are of little practical significance. 3 See, e.g., the characterization of the current air embargo against Iraq as a blockade in Beeston 1990. 4 US Navy and Marine Corp, The Commander’s Handbook on the Law of Naval Operations (Naval Warfare Publication 9-Rev. A), sec. 7.7.1 (1989) [hereinafter NWP 9].

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Using this definition as a point of departure, blockades can be distinguished from a number of related practices. Most confused with blockades are operations designed to interdict contraband. Contraband is material destined for a belligerent which may be of use in an armed conflict.5 Under well-accepted principles of international law, a belligerent may promulgate contraband lists that set forth specific goods which it will not permit to be shipped to its opponent.6 Attempts to transport contraband can result in seizure of the prohibited cargo, as well as the vessel or aircraft on which it is carried, and condemnation in prize proceedings.7 Blockades, on the other hand, are not targeted against particular material, but instead operate to exclude all transit into and out of a defined area or location. In other words, the relevant consideration in a blockade is not the nature of the cargo, but whether an attempt is being made to enter or leave. Furthermore, though blockades are generally limited geographically, activities designed to determine whether vessels or aircraft are carrying contraband may occur anywhere in international territory.8 Also confused with blockades are embargoes. Embargoes, as exemplified by those against Iraq and Kuwait, prevent the movement of goods into, out of, or through a state’s own territory.9 By contrast, blockades arrest the shipment of goods into or out of the enemy’s territory. In addition, whereas embargoes are directed against imports to the target country at the point of origin, blockades are set up in a defined area adjacent to the target country’s territory, i.e., close to the destination. Similarly, embargoes operate against exports at the point of destination, while blockades seek to prevent them from ever leaving the blockaded nation. A final economic warfare technique with which blockades are often confused is siege. Sieges are generally designed to surround a particular location in such a way as to choke off all resupply and, as a result, force its surrender.10 The primary

5

Id. sec. 7.4.1. Id. See also Oppenheim 1952. 7 Colombos 1967. A prize proceeding is a judicial hearing at which the issue is whether property seized by a belligerent can be condemned, i.e., forfeited to the government seizing it. In the United States federal courts have jurisdiction of such matters; in Great Britain the admiralty courts do. Legislative authority for US prize proceedings is set forth at 10 U.S.C. secs. 7651–7681 (1988). 8 See discussion in NWP 9, supra note 4, sec. 7.41.1. There is a difference in the presumption of enemy destination that attaches to the two categories of contraband, absolute and conventional. Absolute contraband is material which is clearly designed to foster the enemy war effort— munitions, uniforms, etc. Conditional contraband consists of cargo which might be put to either peaceful or warlike purposes—fuel, food, construction materials, etc. Id. sec. 7.4.1. The ultimate use of conditional contraband bound for enemy territory must be established factually. By contrast, absolute contraband is presumed to be of use to the war effort. Id. sec. 7.4.1.1. Today, this distinction may be questionable given the wide ranging practices of both sides during the two world wars. 9 The Random House Dictionary 1987. See also 3 Encyclopedia of Public International Law 51 (R. Bernbardt ed. 1982) [hereinafter PIL]. 10 Oppenheim 1952, at 768. 6

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distinguishing element of a siege is its purpose—to impel surrender. Interestingly, blockades first appeared in the sixteenth century as an extension seaward of sieges.11 However, over the course of the next century blockade practices expanded, and the purpose became one not of forcing the surrender of a besieged place, but rather of generally arresting commerce to an enemy.12 In other words, though initially a technique with limited tactical goals tied to classic siege operations, blockade became imbued with strategic purpose. So it remains today. In addition to techniques of economic warfare, blockades may be confused with operations in which certain international territory is closed to traffic or in which transit is limited. Two are of concern here.13 The first is the defensive ‘‘bubble zone.’’ Bubble zones are areas set up surrounding friendly forces in which procedures are established for defending against hostile actions.14 Such zones have been created by the US Navy during Gulf of Sidra operations15 and in the Middle East,16 and by the British while engaged in the Falkland Islands conflict.17 They are differentiated from blockades by their defensive purpose and by the fact that they are defined in reference to the location of friendly forces. More likely to be confused with blockades are exclusion zones.18 Exclusion zones, which have also been labeled ‘‘military areas,’’ ‘‘barred areas,’’ ‘‘war

11

See Colombos 1967, at 714-15; Powers 1958, at 60, 62; McNulty 1980, pp. 172, 174. O’Connell 1984, 1150-51; 3 PlL, supra note 9, at 47. See also Tucker 1955, pp. 283–284. 13 There are a number of other procedures which fall within this category, but which are unlikely to be confused with blockades. First are those operations occurring during peacetime which may pose a danger to vessels or aircraft in a particular area. Examples might include naval live fire practice zones or missile splash down areas. Vessels and aircraft are not prohibited from entering the region, but are warned of the danger of doing so via the NOTAM and NOTMAR systems. Course Material, Rules of Engagement Course, Naval War College (no page, undated). NOTAMs are notices to airmen and NOTMARs are notices to mariners. Both are promulgated internationally to warn of potential hazards in specified areas. A second example is an air defense identification zone (ADIZ). ADIZs are established just beyond territorial airspace and are intended to facilitate identification of aircraft seeking to enter the territory of the state in question. 14 Course Material, supra note 13, (no page). 15 See, e.g., DMAHTC Washington DC message 151835Z Mar. 1986, Subj: HYDROLANT 466/ 86(56). Libya. Gulf of Sidra. 16 See, e.g., USCINCCENT MacDill AFB FL message 231539Z January 84, Subj: NOTAM for Persian Gulf, Strait of Hormuz, and Gulf of Oman. See also the current Department of State Advisory for the Persian Gulf and Red Sea, available through Department of Transportation/ Federal Aviation Agency automated flight service stations. 17 See UN Docs. S/14997, S/14998, 8/15018 (1982). 18 Interestingly, the British total exclusion zones established during the Falklands conflict were incorrectly labeled a blockade when Prime Minister Thatcher addressed Parliament on 28 April 1982. O’Connell 1984, 1155 n. 55. 12

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zones,’’ and ‘‘operational zones,’’19 are areas of the sea or airspace where a belligerent denies access to ships or aircraft which have not secured its permission to enter.20 In this sense, they resemble blockades. However, the sanction for violating the zone is risk of attack on sight, rather than, as in the case of a blockade, capture.21 Additionally, such zones often have defensive, not offensive,

19

These zones were used extensively during the two world wars. See, e.g., British Order in Council of November 17, 1939, Statutory Rules and Orders (UK), No. 1,709 (1939), and British Order in Council of July 31, 1940, Statutory Rules and Orders (UK), No. 1,436 (1940). Current US Navy guidance permits the establishment of such zones: Within the area or vicinity of naval operations, a belligerent may establish special restrictions upon the activities of neutral vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area. The immediate area or vicinity of naval operations is that area within which hostilities are taking place or belligerent forces are actually operating. NWP 9, supra note 4, sec. 7.8. Interestingly, the footnote to this section distinguishes between war zones and operational zones: The belligerent establishment of an immediate area of naval operations should be clearly distinguished from the belligerent practice during World War I and II of establishing ‘operational (or war) zones.’ Operational or war zones refer to areas of the high seas, of widely varying extent which, for substantial periods of time, are barred altogether to neutral shipping or within which belligerents claim the right to exercise a degree of control over neutral vessels not otherwise permitted by the rules of naval warfare. In practice, belligerents have based the establishment of operational or war zones on the right of reprisal against alleged illegal behavior of the enemy.

NWP 9, supra n. 4, sec. 7.8 n. 141. As can be seen, the characterization of the various techniques is unclear. For the purposes of this chapter, though, it is only necessary to distinguish blockades from those techniques with which they may be confused. 20 Fenrick 1986, pp. 91, 92. For more comprehensive discussions of exclusion zones, see Jenkins 1985, Leckow 1988, and Russo 1988. 21 Fenrick 1986, at 92. For example, during the Falklands conflict the British established a ‘‘maritime exclusion zone’’ in a 200 nautical mile radius around the Falkland Islands. Within this area all Argentinian warships and naval auxiliaries were liable to being treated as hostile. See UN Docs. S/14961, S/14963 (1982). Subsequently, a ‘‘total exclusion zone’’ was established, with the same geographical boundaries, in which any ship or aircraft, Argentinian or not, operating in support of Argentinian forces on the Falklands would be deemed hostile. To avoid such treatment, vessels and aircraft had to secure advance approval to transit the area from the British Ministry of Defense. See UN Doc. S/15009 (1982). In response, the Argentinians created their own exclusion zone vis-a-vis British vessels. See UN Doc. S/15018 (1982). Following that action, the British announced that any Argentinian aircraft or warship found more than 12 miles from the Argentinian coast would be treated as hostile. Course Materials, supra note 13, (no page). See also the rules regarding use of force against enemy merchant vessels set out in NWP 9, supra note 4, sec. 8.2.2. Neutral vessels attempting to breach a blockade will generally be treated as enemy merchantmen. Id. sec. 7.5.2.

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purposes.22 Finally, whereas blockades must be applied impartially,23 exclusion zones do not necessarily have to be.24 With the term blockade now distinguished, the topic of aerial blockades can be addressed with greater precision. Since virtually no work of significance has been devoted to the subject, it is necessary to develop a methodology for ascertaining what international norms apply to aerial blockades and whether those norms can, in practice, be complied with. Doing so involves a three step process. First, an effort must be made to determine whether aerial blockades are logical and legal extensions of maritime blockades. Restated, the issue is one of whether an aerial blockade is theoretically permissible as a subcomponent of blockades generally. The United States Navy believes it is.25 However, this is not a unassailable conclusion. Blockade principles have, for example, never been extended to land warfare. It is certainly not unreasonable to assert that since a different regime is involved, different norms should apply. Furthermore, many blockade practices and principles were developed during an era in which aircraft had yet to be invented. This being the case, how valid is their application to aircraft? To test the appropriateness of extension to the atmosphere, it is essential to review blockade history in an effort to uncover those factors which motivated the evolution of blockade law. Only once they have been identified is it possible to determine whether application by analogy of traditional blockade norms to aerial blockades is justifiable.26 Do factors of the same nature exist so as to support

22

O’Connell 1984, at 1155. In discussing immediate areas of naval operations, a form of exclusion zone, NWP 9 notes that (b)elligerent control over neutral vessels and aircraft within the immediate area of naval operations, a limited and transient claim, is based on a belligerent’s right to attack and destroy his enemy, his right to defend himself without suffering from neutral interference, and his right to ensure the security of his forces.’’ NWP 9, supra note 4, sec. 7.8 n. 141. 23 See infra sec. 6.1.2. 24 As noted above, the exclusion zones declared during the Falklands conflict were either directed against vessels of the opponent, or, at most, those operating in support of the military operations. See supra note 21. 25 NWP 9, supra note 4, sec. 7.8, which addresses blockades, includes mention of aircraft throughout. 26 This analysis is both historical and contextual. As the Mallisons have noted: The contemporary legal doctrines of naval blockade are the outcome of a comprehensive process of decision. This ongoing process is not likely to end until international hostilities and war are ended. The process involves not only the value-conserving use of historic legal doctrines, but it involves consideration of those doctrines in relevant historical context, including consideration of the relation between naval tactics and strategy of blockade and the stage of technological development of naval warfare. Mallison and Mallison 1976, at 44, 52.

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extension? If so, prevailing blockade law can be applied.27 If not, then aerial blockades should either be deemed illegal or unique principles should be developed to govern them. Assuming the theoretical acceptability of an aerial blockade is established, the rules which would apply in such an operation must be set forth. This is the second step. Since blockade law is, as will be seen, quite fluid, the historical trends animating its evolution have to be considered to determine where the law stands today.28 Additionally, the mere fact that aircraft are being employed to establish a blockade against other aircraft will certainly affect the content of the law. For instance, the use of force is authorized against vessels attempting to breach a blockade.29 As a factual matter, when force is employed against a ship that force will not necessarily result in death of the crew. However, use of force against an aircraft almost inevitably will. Does this distinction suggest legal limits on aerial

27

Note the use of the word ‘‘can.’’ The reader must be careful not to quickly jump to the conclusion that application by analogy ‘‘should’’ occur. It might be plausibly argued that, on the contrary, different principles should be established to govern aerial blockades. However, in the absence of such principles, judgements of state behavior during aerial blockades would in all likelihood rely upon general blockade law. 28 The law of naval warfare developed almost entirely based on practice, i.e., custom. There was no codification of naval law as there was in land warfare. See, e.g., Convention Concerning the Laws and Customs of War on Land (Hague lV), act. 18, 1907, U.S.T.S. No. 539, 36 Stat. 2277, 205 Parry’s T.S. 277, 1 Bevans 631. See also the discussion of the sources of naval warfare law in Tucker 1955, at 26–32. Thus, a historical analysis is essential to determine what rules govern blockades and if they are amenable to application by analogy to aerial blockades. The importance of custom and context to the ascertainment of the laws of war at any particular time was recognized during the Nuremburg trials: The law of war is to be found not only in treaties, but in the customs and practices of States which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. I Trial of Major War Criminals Before the International Military Tribunal 221 (1947). NWP 9 also addresses the issue: The customary international law of armed conflict derives from the practice of military and naval forces in the field, at sea, and in the air during hostilities. When such a practice attains a degree of regularity and is accompanied by the general conviction among nations that behavior in conformity with that practice is obligatory, it can be said to have become a rule of customary law binding upon all nations. It is frequently difficult to determine the precise point in time at which a use or practice of warfare evolves into a customary rule of law. In a period marked by rapid developments in technology, coupled with the broadening of the spectrum of warfare to encompass insurgencies and state sponsored terrorism, it is not surprising that nations often disagree as to the precise content of an accepted practice of warfare and to its status as a rule of law. NWP 9, supra note 4, sec. 5.4.1. See also, Akehurst 1974–1975, and Tucker 1955, at 194–195. See infra sec. 6.2.4.

29

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blockades that are not operative in maritime blockades? Issues such as this must be considered carefully when attempting to articulate standards for aerial blockades. Finally, it is entirely possible that even though aerial blockades are theoretically permissible, and that specific rules can be set forth to govern them, in practice the rules cannot feasibly be complied with. To illustrate, effectiveness is, as will be discussed, one commonly accepted requirement for legal blockades. It might be the case that certain technological limitations of aircraft will render them ineffective in stopping ingressing or egressing aircraft to the extent required by the law. If so, then an aerial blockade, though theoretically legal, could not be executed in a legal manner.30 Therefore, in the last step of our analysis the norms posited will be tested against real world operational technical factors unique to aircraft. Of course, as technology advances the analysis proffered may be rendered obsolete. Therefore, the conclusions arrived at must be limited to the state of the art as it exists today.

6.1 Blockade Law in Historical Context Before tracing the evolution of blockade practices, it is important to consider the overall legal context in which the norms governing them developed. Blockade law in the modern sense has always been understood as a balancing of the rights of neutrals, whose commerce would be impeded by a blockade, and of belligerents, who justifiably were concerned that the enemy war effort not be supported by external sources immune from interference.31 However, this was not always the case, for neutrality is a concept of international law that only began to emerge in the sixteenth century.32 Prior to that time, no right to remain impartial during 30

It might be suggested that practical limitations should be considered concurrently with the norms which govern aerial blockades. However, though an aerial blockade may be conceptually permissible, it may simply not be doable. A single technological advance may overcome the obstacle and, thus, render the aerial blockade feasible. Therefore, the two topics are considered separately so as to permit the section on norms to have value beyond the current technological state of affairs. Of course, since the norms set forth are contextually derived and should be expected to continue evolving, they must be, to some extent, reconsidered with each application. 31 As noted by Justice Grier in The Prize Cases, ‘‘The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force.’’ The Prize Cases, 67 US (2 Black) 635, 17 L. Ed. 459 (1863), reprinted in Deak 1977, pp. 387–388. 32 There are actually indications that the concept dated back to a fourteenth century collection of rules and custom concerning maritime trade known as the ‘‘Consolato del Mare.’’ The major principle contained in this document was that neither neutral goods on an enemy ship, nor enemy goods on a neutral vessel were subject to seizure. 4 PIL, supra note 9, at 7. However, the majority of commentators date the emergence of neutrality as a concept of international law back to Grotius’ writings of the sixteenthth century. 2 Dep’t. of the Army (DA), International Law (Pamphlet 27-161-2) 253 (1962).

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hostilities was recognized by belligerents,33 and they actively sought to cut off trade with their opponents, most often by besieging fortified towns.34 At the same time, those not directly involved in a conflict were usually required to continue trading with the besieging force, lest their failure to do so be deemed support of the enemy.35 Thus, non-participants could neither allege neutrality to justify trade with those besieged, nor claim impartiality in an effort to avoid trading with either side. As the world became increasingly interdependent, however, the economic wellbeing of many states came to be based in great part on international commerce. The result was a shift in the balance of interests between those states participating in a conflict and those choosing not to.36 Non-belligerents now had a greater stake in maintaining trade ties with belligerents. Equally important was a need to shield commerce among non-belligerents from disruption. These new incentives for increased non-belligerent trading rights were complemented by the effect interdependency had upon the belligerents themselves. Since the warring nations were no longer totally self-sufficient, they too had reason to support a relaxation of the stringent rules which had previously obtained.37 Whereas trade had always been a matter of policy, henceforth, given the conflicting interests, it would be an issue of legality. As a result, the law of neutrality emerged to fulfill the needs of an ever more interdependent global community. Despite the birth of principles permitting neutral status, as a practical matter belligerents continued to have vital interests related to the conduct of warfare

33

Id. McNulty 1980, at 173. 35 Id. 36 The protection of neutral trading rights has even been extended to situations involving domestic unrest. For example, in Judgement of the Lottie May an arbitrator held that the Honduran government could not refuse permission to the British schooner Lottie to put into a port in control of insurgents. According to the judgement, the Honduran government would have had to establish an effective blockade of the port to keep merchantmen out of the area. Judgement of the Lottie May, 15 Rep. Int’l. Arb. Awards 29 (Honduras-Great Britain) (1899) (Beaupre Arb.). There was a similar holding in the Asphalt Co. Arbitration by the Mixed Great Britain-Venezuela Claims Commission. A British asphalt company desired to ship food and supplies from Trinidad to its miners in Venezuela. Permission was refused by the Venezuelan government on the grounds that the port was in the hands of revolutionaries. The Commission held that an effective blockade was required if trade with the port was to be stopped. Asphalt Co. Arbitration, 9 Rep. Int’l. Arb. Awards 389 (Great Britain Venezuela) (1903) (Plumley Arb.). See also extracts from the following cases contained in 1 Repertory of International Arbitral Jurisprudence (V. CoussiratCoustere and P. Eisemann eds. 1989): Bark Chepica (Chile-United Kingdom) (1895) (Janssen Arb.), at 243, and Orinoco Asphalt Co. (Germany-Venezuela) (1903) (Duffield Arb.), at 245. But see Orinoco Steamship Co. (United States-Venezuela) (1903) (Barge Arb.), at 244. 37 McNulty 1980, at 188. 34

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which augured against neutral trading rights.38 For example, siege operations could be rendered meaningless if neutrals were permitted to trade freely with the areas besieged. Obviously, a balance had to be found between the conflicting rights of neutrals and of belligerents.39 It is the effort to determine this balance which underlies blockade law and which explains its evolution.40 In considering the extension of blockade law to the aerial regime, therefore, it is essential to focus on competing neutral and belligerent interests. Can an appropriate accommodation between them be made in the context of aerial blockades or do aerial blockades so affect the balance as to be legally unacceptable? To respond to this question, it is necessary to review how the balancing has been performed historically.

38 See discussion in Jenkins 1985, at 521. Most important, of course, was the goal of ensuring that neutrals did not contribute to the enemy’s war making ability. NWP 9 sets forth the rights and duties of neutral and belligerents as follows:

Customary international law contemplates that in the absence of an international commitment to the contrary, all nations have the option to refrain from participation in an armed conflict by declaring or otherwise assuming neutral status. The law of armed conflict reciprocally imposes duties and confers rights upon neutral nations and upon belligerents. The principle right of a neutral nation is that of inviolability; its principal duties are those of abstention and impartiality. Conversely it is the duty of a belligerent to respect the former and its right to insist upon the later. NWP 9, supra note 4, sec. 7.2. 39 Professor Tucker makes the interesting point that perhaps it would be more appropriate to think in terms of competing ‘‘interests,’’ rather than ‘‘rights.’’ Specifically, he cites the interest of the neutral in unimpeded trade and the interest of the belligerent in not having a neutral compensate for the enemy’s weakness at sea. Tucker 1955, at 182. An apt example of the balancing is found in the customary rules set forth in NWP 9, sec. 7.4. As that section notes, though the law of neutrality permits continuing trade with belligerents, neutral states which provide a belligerent war material risk losing their neutral status. At the same time, though, the neutral state is under no obligation to forbid its citizens from engaging in such trade. NWP 9, supra note 4, sec. 7.4. The distinction between state and individual activity highlights the political-economic-military dimensions of the balancing. 40 According to Professor Oppenheim, there is no need to justify blockade operations as other than the natural concomitant of the emergence of neutrality principles: The fact is that the detrimental consequences of blockade to neutrals stand in the same category as the many other detrimental consequences of war to neutrals… A blockade interferes indeed with the recognized principle of freedom of the sea, and, further, with the recognized freedom of neutral commerce. But all three have developed together, and when the freedom of the sea in time of peace and war, and, further, the freedom of neutral commerce became generally recognized, the exceptional restrictions of blockade became at the same time recognized as legitimate. Oppenheim 1952, at 775.

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6.1.1 Historical Development of Blockades Prior to the sixteenth century, blockades were employed merely as extensions seaward of land sieges.41 The first use a blockade not directly related to an ongoing siege occurred in 1584 during Dutch efforts to secure independence from the Spanish. Though described as a ‘‘siege’’ in the Placaat announcing the blockade of Flemish ports controlled by the Spanish, Dutch practices went much further. Not only were the blockaded ports not besieged on land, but the Dutch also announced that any party trying to trade with the Spanish would be treated as an enemy.42 Neutrals protested the Dutch actions as inconsistent with the emerging principle of freedom of the seas. Additionally, the fact that the Dutch had insufficient naval forces to effectively maintain the blockade raised the ire of the neutrals.43 In their view, if a belligerent’s concerns were to outweigh their own, then, in fairness, the belligerent should have the capacity to effectuate them. If not, neutral trading interests were being sacrificed to countervailing, but relatively meaningless, purposes. Though not framed in terms of blockade yet,44 these initial tactics and the reaction they engendered presaged the nature of the interplay between belligerent and neutral interests that would in the following centuries animate the evolution of blockade practices. Most importantly, the new technique was challenged based on the context in which it was executed. The contention was not that it was inherently wrong, immoral if you will. On the contrary, the complaint was that given the new concept of freedom of the seas, the practice was impermissible. Indeed, the argument against ‘‘paper blockades,’’ as those which could not be effectively enforced were labeled, was an implicit recognition of the validity of the belligerent goal of precluding trade with the enemy. The neutrals were merely asserting that in this case that interest was outweighed. By the early part of the seventeenth century, there was an increasing recognition of the appropriateness of blockades. In De Jure Belli ac Pacis Grotius was to set the stage for the emergence of modern blockade law by arguing that the principle of self defense allowed belligerents to intercept goods bound for the enemy.45 Nevertheless, blockades remained limited in significant ways. Though they were disassociated from land sieges by this time, many still felt that blockades should be limited to specified ports, rather than employed against large coastal

41 42 43 44 45

Tucker 1955, at 283. Colombos 1967, at 714–715. Powers 1958, at 62. McNulty 1980, at 174. Grotius 1853. For if I cannot defend myself except by intercepting what is sent, necessity, as elsewhere explained, gives us a right to intercept it, but under the obligation of restitution, except there be cause to the contrary.

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areas.46 Additionally, there was a general feeling that it was only appropriate to interfere with vessels actually transporting contraband. Clearly there continued to be a general sense of unease with any assertion that the balance was significantly shifting in favor of increased belligerent rights. Small refinements in the principles governing the balance might be permissible to reflect changed reality. However, barring a drastically altered reality, major modifications were not seen as fully justified. Of course, reality would soon be altered drastically. As Europe found itself caught up in the 30 Years War and the conflicts which filled most of the remainder of the seventeenth century, arguments favoring unimpeded neutral trade gave way in the face of the more immediate need to choke off commercial intercourse with one’s enemies. In 1630, for example, the Dutch issued a Placaat announcing that vessels destined for enemy ports in Flanders would be seized wherever found, regardless of the nature of their cargo.47 By the later half of the century, the preclusion of all trade with the enemy had become acceptable, a fact evidenced by repeated consent to treaty provisions authorizing the practice.48 Though blockades were employed liberally throughout the eighteenth century, the question of the proper balance between belligerent and neutral rights continued to dominate perceptions of legality. In great part, this derived from the fact that late seventeenth century blockades (including those of England in 1662 and France in 1672–1673 by the Dutch, and of France in 1689 by the English and Dutch) had been ‘‘paper blockades,’’ for the blockaded coasts were simply too long to

46

Tucker 1955, at 283. See also O’Connell 1984, at 1150. Colombos 1967, at 715. See also McNulty 1980, at 175. 48 For example, see Treaty of Commerce, November 26, 1675, Sweden-The Netherlands, 14 Parry’s T.S. 41, and Convention Concerning the Prohibition of Commerce with France, Aug. 12, 1689, Great Britain-The Netherlands, 18 Parry’s T.8. 479. The strategic aim of the treaties, as well as the expansive approach they took to blockade tactics, is evident in the following extract from the latter treaty: 47

Forasmuch as that the most Christian King hath declared war against the States General of the United Provinces of the Low Countries, and the other allies of the King of Great Britain; and his majesty having put forth his declaration of war against the said most Christian King, it behoves (the allies) to do as much damage as possibly they can to the common enemy, in order to bring him to agree to a just and equitable peace, and to comply with such conditions as may restore the tranquillity and repose of Christendom; and as it is necessary for this end, that they should make use of all their forces, and more particularly order matters so, as effectually to interrupt and break off all trade and commerce with the most Christian King’s subjects, the said king and his subjects may be debarred of all manner of supplies for the use of war, which otherwise may, by the continuance of it, become very injurious, and be the cause of effusion of much Christian blood; and that said majesty the King of Great Britain and the said lords the States general, the better to attain this end, have ordered their fleets to sail towards the coast of France, and to block up all the ports, havens and roads belonging to the most Christian King. Id. at 481–482. The treaty also provided that vessels attempting to breach the blockade could be attacked, seized, and condemned in prize. -Id. at 483.

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effectively control.49 Now, in the eighteenth century, the British, engaged in a war of independence as well as conflicts with France and Spain, declared large areas blockaded despite a lack of enforcement capability. As a result, the criticism of Dutch practices during the sixteenth and seventeenth centuries resurfaced as condemnation of British eighteenth century tactics. In response to those tactics, a number of neutral states, including the Baltics, Imperial Russia, and several European nations, banded together in 1780 to support an effort to require effectiveness as a prerequisite for blockade legality.50 This principle was embodied in a series of bilateral agreements known collectively as the Armed Neutrality.51 Each of the treaties required the blockading force to station sufficient forces in the vicinity of the blockaded coast or port to render entry ‘‘dangerous.’’52 Only if such forces were present would the blockade be respected. The Armed Neutrality had effect on British practice. Some 20 years later the issue of blockade legality reemerged when British warships began stopping neutral Danish and Swedish ships traveling to France and Spain. The incidents resulted in naval engagements despite the fact that neither Denmark nor Sweden were at war with Great Britain.53 Effectiveness again served as the focal point for criticism of the British actions.54 However, though the trend was clearly moving towards a limitation on belligerent rights in the form of an effectiveness requirement, the principle of effectiveness would not be ‘‘universally’’ accepted until the next century. The use of wide ranging blockades by the British throughout the Napoleonic Wars continued to highlight the tension between belligerent and neutral rights. During the early period of those wars, the British declared the French coast from Brest to the Elbe River blockaded. France not only protested, but also retaliated by declaring a blockade of the entire British Isles; Great Britain, in turn, expanded its

49

3 PlL, supra note 9, at 47. Hall 1921. 51 See, e.g., Maritime Convention, June 28, 1780, Denmark-Russia, 47 Parry’s T.S. 345; Maritime Convention, July 21, 1780, Russia-Sweden, 47 Parry’s T.S. 357; and Convention, May 8, 1781, Prussia–Russia, 47 Parry’s T.S. 463. 52 See, e.g., Maritime Convention, Denmark–Russia, supra note 51, Article m(3): 50

Que pour determiner ce qui caracterifs un port bloque, on n’accorde cette determination qu’à celui, où i1 y a par la disposition de la Puissance, qui l’attaque avec des vaisseaux arrêtés et suffisamment proches, un danger évident d’entrer. 53

The incidents occurred in the context of the conflict between Great Britain and France/Spain. Hall 1921, at 188–189. The First Armed Neutrality was disbanded upon promulgation of the Treaty of Versailles in 1783. 54 The result was the Second Armed Neutrality, again a series of bilateral agreements. See, e.g., Convention for the Reestablishment of an Armed Neutrality, December 4, 1800, Russia–Sweden, 55 Parry’s T.S. 411; Maritime Convention for an Armed Neutrality, December 5, 1800, Denmark–Russia, 55 Parry’s T.S. 425; and Convention for an Armed Neutrality, December 6, 1800, Prussia–Russia, 55 Parry’s T.S. 427.

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blockade to France, all of her allies, and the French colonies.55 Obviously, neither side had sufficient naval forces to support their blockades in an effective manner. As should be expected, therefore, neutrals protested vociferously. In particular, the United States expressed strong opposition, and the interference by both sides with American commerce contributed to hostilities with the French and to the War of 1812.56 Indeed, the uncertainty concerning where to draw the line between valid belligerent operations and the right of neutrals to relatively unimpeded trade was even reflected in contemporary English court cases invalidating certain seizures for breach of blockade.57 Generally speaking, though, as the scope of warfare grew, so too did blockade practices. Given the long-standing disputes over appropriate blockade methodology, it was inevitable that some effort would be made to address the issue internationally. That attempt came following the Crimean War at the Congress of Paris. In the Declaration of Paris of 1856, Austria, England, France, Prussia, Russia, Sardenia, and Turkey agreed that effectiveness would be the primary criterion used to judge the legality of blockades. Effectiveness was defined as the use of sufficient naval forces to prevent access to the blockaded area.58 In addition to the signatories, 42 other nations acceded to the treaty.59 Interestingly, the United States did not. As a state that had remained neutral throughout most of the conflicts which enveloped Europe in the eighteenth and nineteenth centuries, it placed great emphasis on neutral rights. From the American point of view, a commercial blockade unconnected to military operations was ‘‘difficult to reconcile with reason or with the opinions of modern times’’ because it operated against ‘‘the trade of peaceable and friendly powers’’ instead of armed forces.60 Thus, President Buchanan made the outlawing of commercial blockades a precondition to American acceptance of the Declaration.61 Despite the

55

Powers 1958, at 62. See also, Berlin Decree of 1806, cited in 3 PIL, supra note 9, at 48. Powers 1958, at 62. 57 See, e.g., The Nancy, 1 Act. 57, 12 Eng. Rep. 22 (P.C. 1809), in which a vessel seized for breaching the blockade of Martinique was restored to her owners because the blockading squadron left the area for an expedition to Surinam without leaving an adequate force behind to maintain the blockade. 58 Declaration Respecting Maritime Laws, Mar. 30, 1856, 115 Parry’s T.S. 1, also reprinted in Moore 1906, 561, and DA Pamphlet 27-161-2, supra note 32, at 275 [hereinafter Declaration of Paris]. Specifically, the Declaration provided that, ‘‘Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.’’ Id. Article 4. 59 DA Pamphlet 27-161-2, supra note 32, at 276. 60 Letter from Mr. Cass, Secretary of State, to Mr. Mason, Minister to France, June 27, 1859, citing Lord Stowell, in Moore 1906, at 781. 61 A extensive reproduction of documents and correspondence relating to the Declaration of Paris is found in Piggot 1919. Of particular interest with regard to the American position are the First Marcy Note, Apr. 28, 1854, id. at 264, and the Second Marcy Note, July 28, 1856, id. at 393. Marcy was then serving as Secretary of State. The American position is also described in Hyde 1945. For a turn of the century argument by an English commentator that Great Britain should repudiate the Declaration, see Bowles 1900. 56

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American stance, however, by this time commercial blockades had become widely recognized as legal.62 The American position regarding commercial blockades was to change drastically with the advent of the Civil War. In an effort to choke off supply of the South, which lacked a self-sustaining industrial base, President Lincoln proclaimed a wide ranging blockade extending along the entire 3,500 miles of Southern coastline.63 All trade with the Confederacy was declared prohibited.64 Additionally, the United States began an intensive diplomatic effort to open up negotiations concerning the possibility of accession to the Declaration of Paris.65 Now a belligerent, the American government became the leading advocate of expanding the scope of blockade operations. Indeed, American practices went well beyond those permitted under the Declaration. Particularly noteworthy was the continuous voyage doctrine.66 Once the Northern blockade became somewhat effective, neutrals began shipping supplies for the South to neutral Caribbean ports, such as those in the Bahamas, for transshipment on smaller faster blockade runners. In response, the Union navy started stopping merchant vessels during the first leg of their voyage, i.e., that into neutral ports. The United States Supreme Court repeatedly upheld this policy.67 As could have been anticipated, the Europeans, now in the unfamiliar role of victimized neutrals, protested. Indeed, the Maritime Prize Committee of the Institute of International Law argued that application of the continuous voyage doctrine would ‘‘annihilate’’ neutral trade.68 The Civil War experience marked a watershed in the evolution of blockade law, for it highlighted, to an extent no other conflict had, the need to more precisely define how the balance between neutral and belligerent rights was to be calculated. Clearly, the interests of neutrals in international commerce had grown enormously, with entire sectors of many nations’ economies based on import/export. For example, British mills depended on Southern cotton, whereas British industry had come to rely on export of finished goods. Yet at the same time, the fact that belligerent economies similarly depended on imports/exports provided added

62

3 PlL, supra note 9, at 48. See Proclamation Regarding the Blockade of Ports of Certain Southern States, Apr. 19, 1861, in Savage 1934, and Proclamation Regarding the Blockade of Ports of the States of Virginia and North Carolina, April 27, 1861, in id. at 420. Many of the documents and much of the correspondence concerning Civil War blockades are found in this volume. 64 See, e.g., Letter of Secretary of State Seward to British Minister Lyons, in id. at 427. 65 See correspondence reprinted in id. at 416–439. 66 This doctrine had actually been applied earlier during the wars of 1756 and the Napoleonic Wars. However, it had never been employed as comprehensively as the Northern forces did during the Civil War. See generally, Briggs 1983, pp. 759, 766; McNulty 1980, at 180; Mallison and Mallison 1976, at 46. 67 See, e.g., The Prize Cases, 67 US (2 Black) 635, 17 L. Eel. 459 (1862); The Springbok, 72 US (5 Wall.) I, 18 L. Eel. 480 (1866); The Peterhoff, 72 US (5 Wall.) 28, 18 L. Eel. 564 (1866); and The Bermuda, 70 US (3 Wall.) 514, 18 L. Eel. 200 (1865). 68 Institute of International Law 1882, pp. 328, 330. 63

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weight to claims that it in order to effectively prosecute war, trade with one’s enemies needed to be shut off. Thus, until the twentieth century, blockade history was characterized by give and take between the conflicting interests of belligerents and neutrals. The imposition of an effectiveness requirement, for example, was responsive to neutral demands for protection of trade. Nevertheless, as a general matter, blockade practices expanded in a relatively steady manner throughout this period. Initially perceived as a mere extension of siege, by the turn of the century blockades established along entire coastlines were the norm. Further, a desire by some states to limit blockades by tying them directly to ongoing military operations had succumbed to the perceived need for commercial blockades. The doctrine of continuous voyage gave many cause for concern that the trend was being carried too far, that neutral rights were collapsing in the face of belligerent demands. In an effort to infuse a degree of positivism, predictability, and consistency into blockade law, the British and German delegates at the Hague Peace Conference of 1907 proposed creation of an International Prize Court which would serve as a court of appeal from the various national prize courts.69 The proposal was considered favorably and a convention providing for the creation of such a court was adopted by the Conference.70 However, as a supranational prize court, it would need universally agreed upon principles against which to judge the national decisions. At the suggestion of Great Britain, a conference was convened to draft a code for use by the Court.71 Attended by the world’s ten major naval powers, the result was the Declaration of London.72 The Declaration can be viewed as a victory for those who argued for greater attention to the principle of free trade.73 It confirmed the requirement of effectiveness,74 dispensed with the practice of continuous voyage except as applicable to contraband,75 and insisted that access to neutral

69

Hall 1921, at 191. See also the discussion in Cohen 1911. Convention for the Establishment of an International Prize Court (Hague Xll), October 18, 1907, 205 Parry’s T.S. 381. 71 Hall 1921, at 191. 72 Final Protocol of the Naval Conference, Febraury 26, 1909, 208 Parry’s T.S. 338 [hereinafter Declaration of London], also reprinted in Charles 1913; 3 International and United States Documents on Oceans Law and Policy (no page) (1986); and Hall 1921, at 341. 73 At least with regard to blockades. Arguably, it permitted a greater range of activities vis-a-vis contraband. 74 ‘‘In accordance with the Declaration of Paris of 1856, a blockade in order to be binding, must be effective––that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline.’’ Declaration of London, supra note 72, Article 2. 75 ‘‘Whatever may be the ulterior destination of a vessel, or of her cargo, she cannot be captured for breach of blockade, if, at the moment, she is on her way to a non-blockaded port.’’ Id. Article 19. 70

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ports remain unfettered.76 Further, it was deemed to correspond to the then generally recognized principles of international law.77 Signed by Austria–Hungary, France, Germany, Great Britain, Italy, Japan, the Netherlands, Russia, Spain, and the United States,78 it appeared that international codification of blockade law had finally occurred. Unfortunately, however, the British House of Lords failed to enact legislation providing British support for the International Prize Court.79 Since the Declaration was intended as the law which was to be applied in the International Prize Court, the rejection of the court rendered it superfluous. As a result, the Declaration was not ratified by Great Britain. Without British support, other nations correctly judged continuation of the project fruitless, and the Declaration died a silent death.80 This was the last attempt by nations to address blockade law in an international fashion. Despite formal rejection of the Declaration, at the outbreak of World War I the United States, then neutral, did encourage the belligerents to adopt it. Germany and Austria-Hungary agreed to do so if the British and French would do likewise. However, the Allies were only willing to adhere to a somewhat modified version.81 By 1916, any pretense of applicability was rejected altogether. In particular, the Allies noted that: [T]he manifold developments of naval and military science, the invention of new engines of war, the concentration by the Germanic Powers of the whole body of their resources on military ends, produced conditions altogether different than those prevailing in previous naval wars… The rules laid down in the Declaration of London could not stand the strain imposed by the test of rapidly changing conditions and tendencies which could not have been foreseen.82

There are two crucial components of this contention. The first is the justification that since the entire resources of an enemy state were now tied to the war effort, blockade norms should be altered accordingly. If the belligerent/neutral balancing test remained valid, then in the era of total war limitations on belligerent efforts to preclude trade with the enemy would clearly have to give way. The second component introduced a new factor into the equation. Assuming the Allied argument was accepted, technology could now affect the balancing. In an era of mines, torpedoes, submarines, and aircraft, it was simply not feasible to place blockading forces in the immediate vicinity of the shore. To do so would be suicide. Therefore, either blockades were, in the twentieth century context, simply illegal, or there would have to be, for practical reasons, acceptance of employing naval forces far from the blockaded coast. Of course, nations had been doing so for 76 77 78 79 80 81 82

‘‘The blockading forces must not bar access to neutral ports or coasts.’’ Id. Article 18. Id. preliminary provision. 3 PIL, supra note 9, at 250. The British viewed the court as an abdication of national sovereignty. McNulty 1980, at 182. Id. Alford 1967, p. 323. 3 PlL, supra note 9, at 250–251. Joint Memorandum to All Neutral Governments, July 7, 1916, excerpted in Hall 1921, at 193.

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many years, yet the practice was never universally accepted. It would now have to be if blockade was to remain a valid tactic. For the purposes of aerial blockade analysis, the important point is not that particular technological advances resulted in specific modifications of the norms governing blockades. Instead, it is that, in a more general sense, technological developments were now influencing expectations of legality. Never before had the physical limitations of the instrument used to enforce a blockade been deemed to affect lawfulness. The focus had always been on the economic capabilities and practices of the enemy state and the development of tactics based on those capabilities; extensions of practice had heretofore been framed in terms of the necessity to meet a new economic reality. The argument based on technological advance, though, was independent of any changed economic reality. Of course, economic factors did continue to be cited, as the Allied statement illustrates, to justify modifications in practice. Yet, it was a justification unrelated to the technological one. Interestingly, very few of the blockades established during the First World War were actually labeled as such.83 Instead, most were defended on the basis of reprisal, particularly in response to the German declaration of a war zone around the British Isles in which Allied merchant vessels were automatically subject to destruction and where neutral ships were at risk.84 As a matter of logic, though, the reprisal argument was fraught with holes, for though German trade would suffer, so too would neutral commerce.85 Certainly, reprisal was an inapplicable doctrine vis-a-vis neutrals. In fact, what was occurring was a new variant of blockade, one responsive to changed economic and technological circumstances. World War I practices were qualitatively much different from those set forth in the Declaration of London or those accepted in the past. For example, no effort was made to station blockading forces close to the shore. Additionally, belligerent vessels were stopping and seizing neutral ships on the high seas, well away from landfall.86 Of course, visits and searches in these areas for contraband would

83

In official communications with the United States, however, the term blockade was used on occasion. In addition, the intent to blockade all commerce with the enemy was clear in those documents. Garner 1915, pp. 830–832. Blockades which were actually declared as such were quite minor operations in which traditional norms could be fairly easily complied with. These included the blockades of German East Africa, the Cameroons, Bulgaria, Asia Minor, and Kiauchau in China. With reference to the issue of technology affecting blockade practices, it should be noted that none of them were instituted in the area of a fortified coastline. McDougal and Feliciano 1961, p. 492. 84 British Order in Council of March 11, 1915, 3 Statutory Rules and Orders 107 (1915), also reprinted in Ritchie 1938, p. 51. The French declaration is at 1915 Journal Officiel 1388. McNulty makes the excellent point that one practical reason for the decision not to label the operations as blockades was that the Allies wished to hinder trade passing to Germany through the Baltic, but did not have sufficient assets to do so in a manner that would comply with the requirement of effectiveness. McNulty 1980, at 181–182. 85 This point is also made in O’Connell 1984, at 1153. 86 Id. at 1152.

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clearly have been permissible.87 However, the operations were carried out in such a manner that it was obvious the purpose underlying them was that of blockade— to arrest all commerce with the enemy. Ships were being compulsorily diverted regardless of their cargo, condemned solely on the basis of their destination (again regardless of their cargo), confiscated upon resistance, and presumed to be heading towards an enemy port when they were en route to a neutral country adjacent to the enemy nation without first passing through an Allied port.88 The blockades instituted by the Allies during the war clearly contributed to their victory.89 Yet, what the practices meant for blockade law was uncertain. After all, the British themselves had avoided using the term ‘‘blockade,’’ and neutral nations, particularly the United States before its entry into the war, had condemned the operations.90 Were the traditional norms still valid despite the fact that technological advances in warfare made blockades against all but the coasts of weak states impossible? Or had blockade law evolved to reflect the new conditions? What were the relevant expectations of the world community in this area of exclusively customary law? Arguably, World War II practices provided the answer.91 87

See, e.g., Declaration of London, supra note 72, Article 37. O’Connell 1984, at 1152. 89 During debates on economic warfare conducted in the House of Lords on May 9, 1944, Lord Nathan stated that the blockades during the First World War ‘‘quite certainly made it possible for us to win.’’ Lord Selboure, the Minister of Economic Warfare, echoed this point by noting that the Germans had acknowledged the same. Lovitt 1944, p. 597. 90 According to the American Secretary of State: 88

The Government of the United States is, of course, not oblivious to the great changes which have occurred in the conditions and means of naval warfare since the rules hitherto governing legal blockade were formulated. It might be ready to admit that the old form of ‘close’ blockade with its cordon of ships in the immediate offing of the blockaded port is no longer practicable in the face of an enemy possessing the means and opportunity to make an effective defense by use of submarines, mines and aircraft; but it can hardly be maintained that, whatever form of effective blockade can be made use of, it is impossible to conform at least to the spirit and principles of the established rules of war. Secretary of State Memorandum, March 30, 1915, extracted in Garner 1915, at 833. Other countries lodging strong protests included Denmark, Holland, Norway, and Sweden. Id. at 832. 91 One major effort to codify blockade law came during the inter-war years. In 1927 and 1928 various groups of scholars were formed under the auspices of the Harvard law faculty as ‘‘The Research in International Law.’’ The purpose of this effort was to prepare draft conventions on various topics for the first Conference for the Codification of International Law which was scheduled to meet at the Hague in 1930. Since the work was proceeding successfully, a decision was made in 1935 to continue the codification efforts. As a result, the Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War was prepared under the direction of two great legal scholars of the time, PhiIip Jessup and Oliver Lissitzyn. Though it was never adopted by the international community, the document is of enormous value as an indication of what the most distinguished American scholars of the time felt blockade was, and should be. Interestingly, the provisions set forth resemble in great part those contained in the current US Navy guidance in the area. The Harvard Research 1939.

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In terms of blockade operations, World War II was a repeat performance of its predecessor.92 Indeed, the only reported traditional blockade during the Second World War was that of Finland by the Soviets in 1939.93 Otherwise, blockade operations mirrored those discussed above. No major objections were lodged against the blockades, and though both the Soviet Union and the United States issued statements reserving their rights when the British announced their broad measures,94 after entering the war they actively supported them. In fact, a joint British–American Blockade Committee operating out of London managed blockade enforcement.95 Given the lack of meaningful protest, it is probably fair to assert that the expansive view of blockades had proven victorious.96 Nevertheless, one practice did demonstrate that neutral trading rights were still appropriate for consideration, and that the balancing test remained valid. That practice was the use of navicerts, a procedure previously employed, though on a lesser scale, during the First World War.97 A navicert was a document obtained from Allied officials which certified that the vessel in question was not destined for enemy shores. By presentation of the navicert, the neutral vessel could avoid visit and search and proceed expeditiously to its destination.98 This practice demonstrated that at least the Allies still felt constrained from interfering with neutral trade when a workable system could be devised for avoiding the need to do so. Thus, the importance of the system lies in its symbolic acceptance of the principle that the balancing test, albeit greatly affected by the changing nature of the world economy and by technological advances, should still be employed to examine blockade practices. The test had not been discarded; the balance had simply shifted in a very significant way. In the post-war era blockades have not been used in the comprehensive manner that they were during the world wars. This is less the product of intent, than of the simple fact that most have been carried out against nations which did not have the

92

See, e.g., British Order in Council of November 17, 1939, Statutory Rules and Orders, No. 1709 (1939). 93 McDougal and Feliciano 1961, at 491. 94 Powers 1958, at 65. It should be noted that the British justified the broad blockade tactics on the basis of retaliation for Germany’s unrestricted submarine warfare. Mallison and Mallison 1976, at 48. This, of course, impacts on the determination, as the same justification had during World War I, of whether the measures employed were justified as an expansion of blockade in response to changed circumstances. 95 The system is described in Lovitt 1944. 96 Other methods of economic warfare employed by the allies included the purchase of strategic material surplus from neutral countries, blocking foreign bank accounts or only allowing their assets to be used for innocent purchases, and blacklisting neutral firms that traded with the enemy. Id. at 597. 97 The system is described at length in Ritchie 1938. This book also reprints related World War I diplomatic agreements, orders in council, and contraband proclamations. 98 3 PIL, supra note 9, at 50.

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ability to resist in any meaningful way.99 For example, during the Korean conflict, United Nations naval forces closed off the eastern coastline with great effectiveness.100 Throughout the blockade, these forces complied with traditional pre-twentieth century norms.101 They were able to do so by virtue of their overwhelming naval superiority, and because the Soviets elected not to involve its substantial naval and air assets.102 Another traditional blockade occurred during the Indian–Pakistani War of 1971. In an effort to prevent the escape or resupply of the Pakistani Army, Indian naval forces blockaded the coast of Bangladesh. As with UN forces in the Korean blockade, the Indian Navy absolutely controlled the area. Additionally, the presence of naval air power from India’s carrier Vikrant rendered a threat from the beleaguered Pakistani forces ashore even less credible.103 Given this control, the Indians were able to employ the blockade in a more or less classic manner.104 Two blockades in the post-war period did deviate somewhat from traditional norms. During its conflict with Israel in 1967, Egypt imposed a conventional blockade of Eliat by closing the Gulf of Aqaba at the Straits of Tiran.105 However, during the October War of 1973, the Egyptians again shut off traffic to Eliat, this time by blockading the Red Sea at the Bab el Maneb, a point some 1200 miles from the Straits of Aqaba.106 It is instructive to note that there were no serious objections except from Israel itself.107 In part this may be the result of the very politicized nature of expressing backing of Israel. However, the lack of protest supports the conclusion that the tactics employed during the world wars had, to some extent, become accepted.

99

Two situations which are not of immediate relevance are the Cuban missile crisis and the Falklands conflict. The quarantine used during the Cuban missile crisis is of limited value to blockade analysis since it was designed only to interdict the delivery of offensive weapons systems. See Presidential Proclamation 3504, 47 Dep’t. of St. Bull. 717 (1962). Therefore, the operation was not a blockade, but rather more along the lines of an anti-contraband procedure. For discussion on this issue, see Mallison 1962, and Christol and Davis 1963. Similarly, during the Falklands War exclusion and bubble zones were used, not blockades. 100 UN Doc. S/1580 (1950). The UN was informed on July 6, 1950 that the President had ordered a blockade of the entire Korean coast in support of UN actions pursuant to Security Council Resolutions 1501 and 1511. The blockade did not include the port of Rashin which served as a warm water port for Soviet naval forces. Mallison and Mallison 1976, at 49. 101 Id. at 49. 102 McDougal and Feliciano 1961, at 492. 103 Mallison and Mallison 1976, at 49. 104 Professor O’Connell notes that the blockade was of short duration, Pakistani ports were not invested, and there was no visitation on the high seas. Thus, he doubts whether this blockade offers any insight into evolving blockade law. O’Connell 1984, at 1154–55. 105 Mallison and Mallison 1976, at 51. 106 The closure was apparently with the consent of Ethiopia, Somalia, Yemen, and South Yemen. The Egyptians simultaneously closed the Suez Canal to traffic bound for Israel. Id. 107 Id.

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The second blockade which departed from pre-twentieth century norms was the mining of North Vietnamese harbors and internal waters by the United States in May of 1972. Arguably, this action resembled an exclusion zone operation more than a blockade, for mines allow only for one response to breach—the use of force.108 However, for the sake of analysis, the incident is relevant to the study of aerial blockades because an instrumentality other than warships was used.109 It is clear that the United States took into account the great potential for destruction resulting from the indiscriminate nature of mines. Similarly, the use of aircraft in an aerial blockade will necessarily have an initial level of violence much higher than a warship stopping another vessel. Because the potential for loss of property and life was so immediate with mines, the United States went to great pains to limit the scope of the operation.110 In particular, extensive efforts were made to provide notification of the emplacement to virtually all parties who might seek to enter the mined areas. Vessels in port were permitted three days to exit the area, the mines were carefully placed so as to interfere only with 11 harbors and various internal waterways, and mining was limited to areas claimed by the North as territorial waters.111 Interestingly, the thrust of the inevitable Soviet pretest centered not on the use of mines, but rather on interference with freedom of navigation on the high seas, something that was not occurring since the minefields lay within territorial waters.112 Two factors in this experience are important for analytical purposes. First, United States practice suggests that as the potential for destruction rises, so too should limitations on blockade tactics. In other words, the balancing test continues to apply. In the case of mines, the indiscriminate nature of their use interferes absolutely whenever neutral vessels enter the mined area. Therefore, more stringent restrictions were imposed on the belligerent. Secondly, the Soviet response would tend to support a view that use of an instrument of blockade other than warships is not in itself precluded. Instead, the issue is whether the mode of employment complies with legal limitations and meets such threshold requirements as effectiveness. A final post-war factor related to the development of blockade law is mention of blockades as a sanction in the United Nations Charter. Under Chapter Seven of the Charter the Security Council is authorized to ‘‘determine the existence of any

108

NWP 9, supra note 4, sec. 7.7.5 argues that the mining of the Vietnamese harbors ‘‘was undertaken in conformity with the traditional blockade criteria of establishment, notification, effectiveness, limitation, and impartiality.’’ 109 For documentary background material on the operation, see Nelson 1972; Address by President Richard Nixon, Nixon 1972; Letter of US UN Representative George Bush, Bush 1972; Kissinger Presidential Assistant 1972; Laird Secretary of Defense M 1972. 110 The issue of using mines during blockades is well analyzed in Swayze 1977. 111 Clark 1973, pp. 162–165. 112 Swayze 1977, at 150. The Soviet response was actually quite mild, and a visit to the Soviet Union by President Nixon commencing May 22, 1972 took place as planned.

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threat to the peace, breach of peace, or act of aggression.’’113 If the parties involved in the ‘‘illicit’’ activity do not desist, the Security Council may order sanctions not involving the use of armed force.114 However, should the Council determine that such sanctions would be fruitless, or that they have proven unsuccessful, it may take military action to ‘‘restore international peace and security.’’115 Among the measures specifically mentioned as appropriate military force are demonstrations, blockades, and other forms of air, sea, or land operations.116 The significance of specifically citing blockades as a sanction is somewhat unclear. If a blockade was ordered by the UN, and it never has been,117 arguably it would be of a nature different than those of the past. In particular, the parameters of the blockade would not be defined by balancing neutral and belligerent rights because the only parties that could allege neutrality would be the few states which are not members of the United Nations. This assertion derives from the Article 49 obligation of all member states to ‘‘join in affording mutual assistance in carrying out the measures decided upon by the Council.’’118 Since members are under an obligation to support a UN declared blockade, then, by definition, they can not claim neutral status. Thus, because the neutral belligerent rights balancing is no longer relevant, rules that developed based on that balance cannot necessarily be deemed to apply. If any of the norms survived, they would have to do so by reliance on some other accepted principle of international law, possibly proportionality.119 The issue of blockade legality in the absence of UN authorization requires a different analysis. Initially, the inquiry would turn on the determination of whether the state employing the blockade is the aggressor or not. The UN Charter does

113 Charter of the United Nations, June 26, 1945, Article 39, 59 Stat. 1031, 1 U.N.T.S. xvi, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N. 1043 [hereinafter UN Charter]. 114 Id. Article 41. 115 Id. Article 42. 116 Id. As noted earlier, the operations in the Persian Gulf pursuant to Resolutions 665 and 670 are not blockades. Instead, they are enforcement actions designed to effectuate an Article 41 sanction of interrupting economic relations. However, since Article 41 does not contemplate the use of force they have been labelled ‘‘Article 41 ‘’’ actions. 117 NWP 9, supra note 4, sec. 7.7.2.1 n. 130. Though not formally an Article 42 blockade operation, in April 1966 Great Britain was authorized by Security Council Resolution 221 to use force to prevent oil for Southern Rhodesia from being delivered to the port of Beria. She was further authorized to arrest vessels leaving the area if they had unloaded oil at the port. Patrols were maintained by Great Britain until 1975 and proved fairly successful. See discussion in O’Connell 1984, at 1158. 118 UN Charter, supra note 113, Article 49. See also id. Article 2(5). 119 For a discussion of neutrality in light of the UN Charter, see Leckow 1988, at 629–630.

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require all member states to refrain from the use of force.120 Further, in the Definition of Aggression Resolution the General Assembly specifically cited blockades as an aggressive act.121 Though the resolution is not binding, as an expression of community opinion it supports the argument that in the modern era ‘‘pacific blockades,’’ i.e., those blockades employed in the absence of ongoing armed conflict, have been outlawed. However, if one looks at the broader purpose underlying the prohibition of aggression, minimization of the use of force to resolve differences, then pacific blockades would appear legal when employed by a state to convince another not to itself use force in an aggressive manner, i.e., to preclude aggression. In other words, the issue is not who resorted to the military instrument first, but rather what was the the rationale for doing so.122

120

UN Charter, supra note 113, Article 2(4). All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purposes of the United Nations.

The issue of the effect of this provision is the source of much controversy. For example, to what extent is it operative in the absence of the international enforcement mechanisms originally envisioned when the United Nations was first formed? Since states, at least until recently, have no UN policeman to turn to in order to guard their rights, should the surrender of military self-help competence under Article 2(4) still be deemed to bind them? Further, how broadly should the self defense exception of Article 51 be read? Does self defense include anticipatory self defense? If so, how imminent must the threat be? Is blockade an appropriate anticipatory self defense measure? Is blockade a threat against territorial integrity or political independence? If not, is it nevertheless inconsistent with the purposes of the UN? This entire subject area is a fertile source for research and thought, but unfortunately space limitations preclude adequate treatment here. 121 DefInition of Aggression, G.A. Res. 3314(XXIX), annex, Article 3(c), UN Doc. GA/RES/ 3314(XXIX) (1974), reprinted in 1974 Y.B.U.N. 647. 122 The issue of pacific blockades is quite complex and beyond the scope of this chapter. Blockades are characterized by many as an act of war, and thus available only to belligerents. See, e.g., 3 PIL, supra note 9, at 47; Wright 1963; Statement by US UN Representative Warren Austin, May 22, 1948, 18 Dep’t. St. Bull. 695, 697 (1948); Presidential (Eisenhower) News Conference, December 2, 1954, 31 Dep’t. St. Bull. 887, 889 (1954); ‘‘Situation in Cuba,’’ Testimony of Secretary of State Dean Rusk Before the Committee on Foreign Relations and Committee on Armed Services, US Senate, 87th Cong., 2d Session 35, 60-61 (1962). However, their use is by no means unprecedented. One turn of the century study analyzed 21 pacific blockades. Interestingly, only five resulted in a state of war. Hogan 1908. The best approach is one which focuses on a blockade’s potential for minimizing use of force. For example, one commentator has argued that the use of a blockade in 1938 by the Allies might have contributed to stopping Hitler before he conquered and enslaved most of Europe. Thomas 1980, at 199–200. Another has noted that ‘‘as a minimum exercise of coercion in situations in which maximum exercises of coercion might reasonably be expected, the pacific blockade does appear to have had virtues as a convenient short circuit for what might prove to be application of greater coercive power.’’ Alford 1967, at 50.

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An easier scenario to deal with is the use of a blockade by a state which has been the object of aggression. Surely, the means utilized by that state to defend itself, a permissible act under the Charter,123 cannot be more limited than those permitted the UN in coming to its defense. The acceptability of blockades in the face of aggression is also supported by virtue of the fact that on the continuum of military action, blockades are a relatively circumscribed methodology. Furthermore, in the past the belligerent right to conduct blockades was based on the need to effectively prosecute the conflict. In no circumstance is this need more accentuated than when validly engaged in self defensive measures. Thus, in the post World War II era a new factor has been added to blockade legality analysis. If aggressively imposed, blockades are illegal; if not they are legal, at least in terms of establishment. Arriving at the conclusion that non-UN authorized blockades remain permissible unless aggressively imposed, are the norms governing blockades nevertheless affected? Arguably, they are not because the neutral-belligerent balancing retains its validity in the absence of UN authorization pursuant to the Charter. The matters discussed above bear on the issue of when blockades might be acceptable, not on how they can be carried out. Today, therefore, a blockade may be illegal on two counts: aggressive use and failure to comply with the standard rules governing blockades. Indeed, if any conclusion at all is to be drawn regarding methodology, it is that greater leeway should be granted the blockading force in situations involving self-defense, for if the context of the overall conflict is deemed relevant to the procedural requirements of blockade, the belligerent/neutral balance would necessarily shift towards the rights of a belligerent engaged in self-defense.

6.1.2 Conclusions to be Drawn Relevant to Aerial Blockades From the historical data set out above, it is possible to identify several trends which bear on the appropriateness of extending the norms which govern naval blockades to aerial blockades. At the same time, assuming the extension is

123 UN Charter, supra note 113, Article 51. This article also authorizes collective self defense measures. The analysis that follows, therefore, would extend to nations involved in a collective action.

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justified, an understanding of the trends will facilitate ascertaining the manner in which those norms will apply.124 The first major trend that can be discerned in the evolution of blockade law is a responsiveness to an increasingly industrialized, complex, and interdependent global economy.125 Initially an adjunct to sieges, blockade practices expanded continuously as the importance of external trade to the enemy’s war effort grew. Recall that the permissible scope of blockades, limited in the sixteenth century to fortified ports, was extended to unfortified locations, and ultimately to the entire coastline of the enemy state, as well as its overseas holdings. Additionally, the continuous voyage doctrine and the use of long distance blockades were further indications of how seriously belligerents viewed the need to shut down the enemy’s lines of communication. In terms of the balancing test, these extensions are indicative of the fact that interdependency resulted in an increase in the weight of belligerent claims vis-avis those of neutrals. Certainly, some of the practices were challenged as illegal under international law. However, there is no denying that as a general rule the trend has been towards liberalizing blockade practices to respond to the growing dependence of the enemy on neutral trade.126 The interdependency factor has taken on greater importance in the twentieth century for three reasons, reasons which explain in part the incredible expansion of blockade practices. The first lies in the nature of trade with neutrals. In the past commerce was usually the province of private business. However, with the advent of state owned enterprises, trade with belligerents often tended to take on the aura of volitional state policy. This being so, assertions of neutral impartiality have

124 Doing so is not an unprecedented exercise. Since the inception of warfare, the rules which govern conflict have been a reflection of the context in which they emerged. As that context evolved, so too have the rules. For example, during the era of ‘‘limited war’’ (1648–1792), wars were fought by professionals, and civilians were often affected very little. However, with the emergence of ‘‘total war’’ in the twentieth century, entire populations became caught up in conflicts. See the discussion of phases of warfare from 1648 in DA Pamphlet 27-161-2, supra note 32, at 5–11. Thus, it became the practice to target civilian population centers with ‘‘military importance.’’ At the same time, the potential for use of the ‘‘total war’’ concept as a justification for causing unnecessary suffering generated extensive efforts to provide norms for military actions affecting civilians. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287. As the context changes, therefore, so too will the rules. 125 Though economic factors played a part in prior conflicts, it was during the Napoleonic Wars that economic warfare emerged as a separate technique. By World War I the extent both of economic mobilization required to fight a war and of state control of economics had reached a point where economic warfare took on major strategic dimensions. See DA Pamphlet 27-161-2, supra note 32, at 11. Note that from the Napoleonic Wars forward, blockade practices expanded tremendously in terms of scope and tactics. 126 NWP 9 notes that ‘‘(t)he increasing emphasis in modern warfare on seeking to isolate completely the enemy from outside assistance and resources by targeting enemy merchant vessels as well as warships, and on interdicting all neutral commerce with the enemy, is not furthered substantially by blockades established in strict conformity with the traditional rules.’’ NWP 9, supra note 4, sec. 7.7.5.

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become questionable. In bygone eras, when private trade dominated, states could distance themselves from their citizens’ choice of trading partners. Today, on the other hand, it is increasingly difficult for states which, in varying degrees, are themselves engaged in international commerce to claim the benefits of neutrality when they have willingly chosen to support a belligerent’s enemy. Additionally, the fact that, given the nature of current economies, virtually all trade with a state in some way fosters war making capacity renders assertions of neutrality even more untenable. Thus, the neutral rights are more easily counterbalanced. A related factor is that since so many of the world’s economies are not only dependent on external trade, but dependent on trade with a particular country or group of countries, it now matters to neutrals, more than it ever has, who wins. The image of the disinterested neutral which simply wants to conduct commerce unimpeded by a conflict about which it has no concern is in the twentieth century passe. To the extent that a neutral state now may have ample reason to support one side or the other, any assertion of neutrality it makes should weigh less heavily. The final twentieth century aspect of interdependency is the extraordinarily violent nature of warfare in our times. Though destructiveness, both in terms of lives and property, has grown consistently throughout history, the pace of that growth in the twentieth century is unparalleled. A single aircraft delivering a nuclear trigger has more potential for affecting the course of a conflict than would 100 ships loaded with rifles. Given this fact, the belligerent need to cut off trade with an enemy takes on extraordinary proportions, particularly since very few states are self-sufficient in, armaments. Thus, growing interdependency is one factor which can help explain the expansion of blockade practices described in the previous section. That the expansion occurred almost exponentially in the twentieth century is, when viewed from this perspective, not surprising, particularly in light of the three factors which qualitatively affected interdependency from the turn of the century.127 A second major trend in blockade practice that can be historically identified is the impact of advancing technology on operational feasibility and effectiveness. Over time, blockade practices have adapted to this advance with regularity. A classic example is the movement seaward of the blockading force. The development of long range artillery, aircraft, submarines, and missiles made it increasingly dangerous to station forces close to the shoreline.128 As a result, the norms governing where a blockade had to be established were liberalized.

127

The change in the nature of warfare in the twentieth century is noted by John McNulty: As law grew out of touch with the realities of power and politics, states which had the naval strength and the national will to survive began to ignore, corrupt, or circumvent the principles so carefully constructed by the scholars and legalists… Principle yielded to power and necessity, and the emergence of the twentieth century concept of total war sounded the tocsin for any carefully drawn rule which conflicted with the necessities of such conflict.

McNulty 1980, at 189. 128 See discussion at NWP 9, supra note 4, sec. 7.7.5. As this section notes, advanced weaponry makes close in blockade almost impossible in all but local or limited conflicts.

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At the same time, developments in modes of transportation have made it easier to avoid blockades. Thus, during the American Civil War and the two world wars, blockade actions were defined by the ultimate, not immediate, destination of the cargo. In the Civil War the employment of smaller faster vessels able to elude the blockading force necessitated an expansion in practice.129 Similarly, during the world wars, the existence of extensive rail and road networks connecting nations meant that it was no longer as necessary to deliver goods directly to a port within the enemy’s territory.130 The ability of new technology to circumvent economic warfare or coercion in significant ways was probably best illustrated during the Berlin Blockade.131 In sum, to date technology has operated to expand the permissible scope of blockades at the expense of neutral rights. Both of the major trends outlined above would argue for the acceptability of aerial blockades. Certainly, aerial supply is a critical component of modern interdependency. It is inconsistent to argue that states can respond to an enemy’s increasing interdependency by ever greater extensions of naval blockades seaward, but cannot do so by extension of the blockade to the atmosphere. Such an extension is consistent with the balancing of belligerent and neutral rights. If the proposition that interdependency renders belligerent interests more compelling is accepted, then that factor weighs even more heavily given the increasing reliance on aerial commerce. Is there some countervailing neutral interest to offset this effect? It would appear not if aerial commerce is viewed as having a quantitative, rather than qualitative impact on commerce. Though aircraft do have the advantage of speed, there are almost no products which an aircraft can transport that a ship cannot. Thus, the impact is primarily quantitative. Since blockades have always operated to exclude all commerce, this impact would not seem to be determinative, for the nature of the interference has not been altered in any significant way. Even if the qualitative factor of speed is advanced, certainly the three twentieth century interdependency factors discussed earlier would operate to offset it.

129

See supra sec. 6.1.1. This point was explicitly made by the British in replies to American complaints concerning the scope of the British operations. Garner 1915, at 841. 131 The Economist, Sept. 8, 1990, at 46. Two million Berliners were supplied for 10 months in 1948–1949. With regard to the Iraqi situation, the Economist has estimated that the Iraqis, using captured Kuwaiti aircraft as well as their own, can fly in rationed items from Libya by keeping their aircraft aloft 18 h a day for 23 days a month. Id. 130

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One possible counterargument to this line of reasoning is that blockades should be defined by the environment in which they operate.132 For example, standard naval blockade law has never been applied to land operations. However, such an argument is based on a misperception of the reason this is so. The critical distinction is not simply that another regime is being considered, but rather that territoriality and sovereignty attach to the land, while they do not to the high seas. Airspace above the high seas is viewed under international law in precisely the same fashion as the high seas themselves.133 This being the case, airspace is analogous to the high seas when conducting the neutral belligerent balancing; thus, extension to the atmosphere must be evaluated in the same way that historical extensions seaward were. To the extent that the freedom of the seas has been limited by belligerent rights, so too can freedom of aerial navigation and overflight.

132

Or alternatively, by the method of warfare. Professor Tucker notes: The application ‘by analogy’ of the requirements lawful combatants must meet in naval or land warfare is objectionable if only for the reason that aerial warfare is a distinct form of waging war, which cannot be easily assimilated to the older forms of warfare. The differences existing between land and naval warfare with respect to the identification of legitimate combatants should constitute a warning against attempts to apply to aerial warfare rules operative to troops on land or to vessels at sea.

R. Tucker, supra note 12, at 44. It would seem that a blanket prohibition precluding application by analogy operates too broadly. One must instead query whether the basic purposes of a particular rule or set of rules can be accomplished using another means of warfare. Some rules certainly may not be amenable to analogous application. For example, it is generally accepted that an aircraft may pursue a disabled opponent to destruction regardless of seeming attempts to surrender, since that opponent may continue to pose a threat. Dep’t. of the Air Force, International Law-The Conduct of Armed Conflict and Air Operations (AFP 110-31), para 4-1d (1976). The same is not the case with regard surrender in land warfare. Hague IV, supra note 28, Article 23(c). However, this example is merely illustrative of the occasional inappropriateness of application by analogy, not of its invalidity in every situation; NWP 10-2, the predecessor to NWP 9, noted that there was no body of law which applied specifically to aerial combat. Therefore, naval commanders were instructed to generally follow maritime rules unless instructed otherwise in the text. Dep’t. of the Navy, Law of Naval Warfare (NW1P 10-2), sec. 250 (1955). 133 See, e.g., Geneva Convention on the High Seas, Apr. 29, 1958, Article 2, 450 U.N.T.S. 82. 13 U.S.T. 2312, T.I.A.S. 5200, and United Nations Convention on the Law of the Sea, December 10. 1982, Article 87, UN Doc. A/CONF 62/122, reprinted in 21 I.L.M. 1261 (1982), and Basic Documents in International Law 127, (I. Brownlee ed. 3d ed. 1983). Airspace over land and territorial sea is under the complete sovereignty of the subadjacent nation. Convention on International Civil Aviation (Chicago Convention), Article 1, Dec. 7, 1944, 15 U.N.T.S. 295, 61 Stat. (2) 1180, 3 Bevans 944. For a discussion of international standards regarding sovereignty over airspace, see Phelps 1985, 266–274, and 11 PIL, supra note 9, at 297–299.

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The effect of technological advances leads to a similar conclusion. Aircraft have provided states with a means of circumventing naval blockades. In the past, blockade norms have been adjusted to take technological development into account. Not to do so in this case, particularly given the transport capacity of modern aircraft, might in many cases very well make many blockades meaningless. On the other hand, it could be argued that using aircraft to enforce an aerial blockade is unacceptable. However, though doubts have been expressed about the ability of aircraft to effectively perform this function,134 there is no historical precedent for challenging blockades solely on the basis of the weapon system selected for enforcement. From a theoretical point of view, the question is not what physical object is being used, but whether it can be used in a fashion that comports with accepted norms. For example, consider the case of submarines. A submarine which while submerged sinks a merchant vessel without warning might violate restrictions on blockade tactics. However, the same submarine could surface and engage in visit, search, or capture in exactly the same manner, though perhaps with less effectiveness, as a surface vessel. An identical mode of analysis would apply to aircraft, i.e., employment of aircraft may or may not be legal depending on how they are used. This is not to say that the norms governing the use of aircraft in aerial blockades will precisely track those involving warships in naval blockades. In certain cases, the belligerent/neutral balance may suggest granting aircraft greater leeway. For example, there may be reason to believe that aircraft might not be held to the same standards regarding effectiveness as vessels. Given the fact that naval blockades have been universally viewed as acceptable even when they did not stop a single aircraft from transiting the area, this may not be an unreasonable assertion. At the same time, aircraft might be held to a higher standard. In light of their greater destructiveness, for instance, perhaps a more stringent requirement of notification should be imposed. The point is that while the nature of the instrument used may affect the norms applied, nevertheless, the

134

The Harvard Research did briefly consider the possibility for aerial blockade enforced by aircraft. However, it concluded that such a blockade could not be effectively maintained and, therefore, omitted mention of the topic from the Draft convention. The Harvard Research 1939, commentary to Article 72 (pp. 713–714). See also Spaight 1947; Moore 1924, and Smith 1936. A contrary result was reached on the previous decade during preparation of the 1923 Draft Hague Rules of Aerial Warfare. Though never formally adopted, Article 5 of the Draft provided that ‘‘(a) neutral private aircraft is liable to capture if it… (i) engages in breach of a blockade duly established and effectively maintained.’’ Greenspan 1959. Essentially, the Draft treated aircraft in accordance with the prevailing rules of naval warfare. See discussion in Spaight, supra, at 409. Interestingly, the Dutch delegation opposed Article 5 on the basis that aerial blockades could not be effective. Ultimately, though, the Commission of Jurists rejected this argument and determined that while naval blockades would not be rendered ineffective by the lack of a related aerial blockade, if an aerial blockade was established, the law of naval warfare would apply by analogy. The Harvard Research, supra note 91, at 781, and Colombos 1967, 737.

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instrument itself does not result in per se illegality. Each proposed operation must be evaluated on its own merits. Based on the above analysis, aerial blockades maintained by aircraft are theoretically appropriate as an extension of classic naval blockades. However, one important caveat is in order. Despite the general expansion in the scope of permissible blockade tactics, no commentator has alleged that the balancing test should be discarded altogether. Indeed, efforts to codify blockade law in the nineteenth and early twentieth century are clear evidence that even belligerents realize neutral rights remain a valid factor in the equation. Likewise, the casting of the World War I and II blockades in terms of reprisal, as well as the self imposed limitations on post 1945 operations, serves to indicate the continuing vitality of neutral rights. Therefore, today the issue is not whether to employ the balance in evaluating aerial blockades, but instead how to do so. This will require a review of the norms associated with blockades in the context of aerial operations. Once the parameters of the norms have been ascertained, then particular operations involving aircraft can be evaluated. It is to those norms that we shall now turn.

6.2 Norms Applicable to Aerial Blockades In the previous section the historical development of blockade practices was set forth so as to be able to understand in a general sense the direction in which those practices were heading. Clearly, the trend has been towards expanding the permissible scope of activities, and interdependency and changing technology were offered as factors motivating that expansion. Based on this historical analysis, the conclusion was reached that extending blockades to the atmosphere is acceptable in theory. We will now turn to the norms that might govern aerial blockade operations other than those declared pursuant to UN authorization. Since aerial blockades have been characterized as an appropriate extension of naval blockades, the rules governing naval blockades will be used as a point of departure. Two initial caveats are in order. The first is applicable to any blockade study, whether focusing on the naval or aerial variants. As the historical survey demonstrated, blockade practices and the principles that emerged therefrom have been quite fluid. Given this fluidity, it would be hasty to allege that ‘‘X’’ is a rule simply because it was applied in the past. Instead, rules must be evaluated contextually. For example, in light of interdependency, certain rules may be relaxed to allow belligerents to meet new economic ‘‘threats.’’ Historically, there is an unbroken chain of precedent for doing so. Alternatively, rules might also be tightened based on interdependency, for interdependent neutrals have a great interest in unhindered trade. The same points could be proffered regarding the impact of technology. Therefore, to determine the applicability and parameters of any particular norm requires the

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traditional balancing in the context of the purpose that rule was designed to effectuate. At the same time, it must be remembered that we are now dealing both with a different enforcement mechanism and with a different mode of breach. Aircraft and ships are dissimilar in terms of capabilities. This fact will necessarily result in adjustments of the norms, again both in terms of restrictions and relaxations. However, so long as the exceptions do not swallow the rule, it will remain appropriate to approach aerial blockades as extensions of naval blockade operations. Because the exact content of each norm is in flux, and because different regimes are being considered, it is perhaps most profitable to approach the issue of norms in terms of broad categories. Historically, five areas of concern have tended to be constant: application, declaration and notice, access to neutral areas, effectiveness, and breach. By utilizing these categories to focus attention on related ‘‘rules,’’ it will be easier to reason by analogy from naval to aerial blockades. Thus, each will be considered individually.

6.2.1 Application For at least the past two centuries, an accepted principal has been that blockades must be applied universally, i.e., selective enforcement, generally on the basis of nationality, is impermissible. This maxim has been enunciated in judicial decisions,135 naval regulations,136 and treatises,137 as well as in codification efforts such as the Declaration of London.138 Never has it been seriously disputed.

135

See, e.g., Olden v. McChesney, 5 S. and R. 71 (Pa. Sup. Ct. 1819), reprinted in Deak 1978: There is no necessity for perfect uniformity in maintaining a blockade, because there may be a particular reason for permitting particular vessels to go in, or out. But the blockade should be preserved in so steady a manner, as not to give neutrals just cause for supposing that it is raised. This they must suppose, if ships are capriciously permitted to enter or depart… All that can be said of the law is that a neutral ship ought not to be condemned for breach of blockade if other ships under the same circumstances have been permitted to depart.

Id. at 469–470. See also The Rolla, 6 C. Rob. 364, 165 Eng. Rep. 963 (1807). See, e.g., NWP 9, supra note 4, sec. 7.7.2.4:

136

A blockade must be applied impartially to the vessels and aircraft of all nations. Discrimination by the blockading belligerent in favor of or against the vessels and aircraft of particular nations, including those of its own or those of an allied nation, renders the blockade illegal. (Citing Declaration of London, supra note 72, Article 5). See also NWIP 10-2, supra note 132s. 63s(f), and Dep’t. of the Navy, Instructions for the Navy of the United States Governing Maritime Warfare, sec. 3, para 26 (1918). 137 Colombos 1967, at 720; Oppenheim 1952, at 770–771. 138 Declaration of London, supra note 72, Article 5.

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In light of the purposes of blockades, the rule is quite sensible. If a blockade is justified on the basis that a belligerent should be entitled to interfere with trade which contributes to the war-making ability of its enemy, then the source or destination of that trade should be irrelevant so long as a contribution is in fact being made. Indeed, the extent to which particular supplies contribute to an enemy’s capabilities is not dependent on the nationality of source. After all, oil is oil. If a difference in quality, for example, is alleged, the proper remedy for the belligerent would be to declare the qualitatively better product contraband, not to selectively enforce a blockade. Similarly, if different states are the source of different products, and the belligerent wishes to halt the flow of one but not the other, again the remedy would lie in contraband prohibitions. The same analysis applies to exports. The critical factor is that the enemy has a market for his goods, not that the market happens to be in a particular state. Where the goods are ultimately sold is, as among neutral states, theoretically irrelevant vis-a-vis war making capability. Export profits are export profits. Impartiality in enforcement also protects neutral rights. Selective enforcement based on nationality would by definition operate to the detriment of neutral states against whom sanctions are applied. Yet, conceptually all neutrals stand in equal stead in relation to hostilities, for they are allied to neither belligerent. To treat them differently is to artificially imply that some nations are more neutral than others. In fact, discriminatory application would reveal that the blockading state is conducting economic warfare against both the enemy and the victimized neutral. Doing so is simply not tenable under the belligerent/neutral rights balancing test. However, the principle must not be read too broadly. Universal application has not been extended beyond the issue of selective enforcement, nor has there been any assertion that blockading forces must operate in such a way as to equalize the impact on neutral states. Instead, it simply requires that the blockading force not pick and choose among vessels flying the flags of different nations when enforcing a blockade.139 Given the limitation of the universal application principle to issues of selective enforcement among similarly situated vessels, it would be acceptable to declare a blockade only as to vessels either ingressing or egressing the blockaded area.140 Applying the balancing test, this tactic is quite reasonable, for there is a lesser degree of interference with neutral trade overall, and that interference which does occur operates in a theoretically nondiscriminatory way. Indeed, the complexity of modern interdependency may render a blockade limited to either ingress or egress 139

Indeed, even with regard to ships flying the same flag, enforcement must be consistent across the board. Obviously, though, the principle is designed primarily to avoid the dangers of discrimination addressed above, since there would seldom be a reason to selectively enforce against ships of the same nation. 140 In fact, this is precisely what happened in 1854 when allied forces blockading the mouth of the Danube only operated against vessels travelling to Russian ports. The purpose was merely to arrest resupply of the Russian forces by sea. Oppenheim 1952, at 771.

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quite appealing. For example, if the target country is primarily dependent on the export of oil for funds, it may be just as effective to prohibit egress as it is to close off all transit. Likewise, a nation heavily reliant on oil imports may need only to be blockaded as to ingress to achieve the desired results. Both approaches would contribute to the availability of assets for employment elsewhere. Additionally, a limited blockade will be viewed as less intrusive on neutral rights, thereby providing the blockading country political benefits. With regard to aerial blockades, the tactic has merits from a practical point of view. Since these blockades are established over the high seas, turning back aircraft attempting to ingress may be problematic. In particular, such aircraft might not have sufficient fuel remaining to reach a recovery field outside enemy territory. However, if the blockade operates only against aircraft attempting to egress the area, then those aircraft can be simply turned around. In most cases, they will not have traveled nearly as far as comparable ingressing aircraft, and, thus, will have a greater range of recovery options. Additionally, there will be more recovery fields available because the turned aircraft will be flying over land. Of course, specific geography may alter this analysis; nevertheless, the option will be particularly appealing in blockades of long coast lines which face out on large bodies of water. Another distinction bearing on the parameters of the universal application principle is that though selective enforcement is a critical component, selective identification is not implicated at all. For aerial blockades, this point is critical. Because aircraft travel much faster than ships, the reaction time for the blockading force is compressed enormously. If a blockade is to be effective, potential breachers must be identified in sufficient time to allow friendly forces to respond and to ‘‘convince’’ the breacher to turn back. Several tactics can be used to accomplish this purpose. Naval vessels can be stationed beyond the ‘‘line of investment’’ to pick up incoming aircraft in advance, as can airborne warning and control aircraft such as the E2 and AWACS. Additionally, aircraft with electrical (ELINT) and signals intelligence (SIGINT) capabilities can help identify those approaching the blockaded zone. The practical problem is that such resources are not unlimited, a problem which grows in relation to the size of the blockaded area. A further complication is the fact that to enhance effectiveness, the farther from the blockade limit the identifying assets are located the better because reaction time will be increased. Yet, the greater the distance from the zone, the more territory there is to cover, and, barring additional assets, the less effective early warning will be. From a planning viewpoint, the remedy is to concentrate identification efforts on those nations from which potential breachers are most likely to come. Thus, if neutral state ‘‘A’’ either has a history of attempting breach or is in some way likely to do so due to political or economic ties with the enemy, but neutral ‘‘B’’ does and is not, then assets used to identify potential breachers should be targeted almost exclusively against ‘‘A’’. This will allow for extension of the line of identification forward without unduly sacrificing effectiveness. An operation planned along these lines would not contravene the universal application principle because rules of

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engagement requiring challenge regardless of nationality remain unaltered. Only if intercept philosophy was based on nationality would the norm be violated. Finally, the universal application principle would probably not apply to selective enforcement based on category of aircraft. In maritime blockades, a blockading force can permit transit by neutral warships even though it must prohibit passage by all merchantmen. It is not required to do so, but may choose to exercise the option if it wishes.141 This distinction is based on the goal of affecting trade with the enemy. It would clearly be permissible to likewise allow military, but not civil, aircraft to pass. The more important question is whether the opposite is true, i.e., can the blockading force preclude military aircraft from ingressing or egressing without including civil aircraft in the prohibition. Arguably not, since given the economic underpinnings of blockade law, discriminating in this manner does not significantly contribute to the ultimate purpose. However, a better response is that it can, if doing so is part of a stepped approach ultimately leading to exclusion of all aircraft. This argument would center on the potential destructiveness of enforcing the blockade by use of force. Should an aircraft refuse to turn back at the line of blockade or land at a designated field, force would have to be employed if the blockade was to remain effective. This would inevitably result in the aircraft’s destruction and the death of all aboard. The key to avoiding the need for a forceful response is credibility, yet at times credibility may only be established by actually using force. This being the case, it would certainly be preferable to shoot down a military aircraft than an unarmed civilian transport, or possibly even an airliner. By employing a stepped approach, attempts to test credibility would likely be made when the acceptability of using force is at its apex. Subsequent extensions of the blockade to civil transports, or even airliners, would, therefore, possess greater credibility. As a result, the risk of unacceptable violence would diminish correspondingly. The stepped approach provides a further benefit in that it deprives a sate wanting to challenge a blockade of the opportunity to send through a ‘‘valuable’’ asset (e.g., an airliner) as soon as the blockade is established in the expectation that the blockading force will lack the will to shoot it down. In other words, measured escalation makes a forceful reaction to breach more credible by rendering it more thinkable. Of course, the more credible the threat, the less the likelihood that breach will be attempted. Ultimately, then, the stepped approach actually enhances the effectiveness of a blockade which is eventually declared against all aircraft. It should be noted that there are exceptions to the general rule that blockades must exclude all transit. As just noted, the blockading force may permit the passage of neutral warships and military aircraft. This is a matter of discretion, not of right, and may be subject to whatever conditions the blockading state chooses to

141

NWP 9, supra note 4, sec. 7.7.3; Colombos 1967, at 724; Declaration of London, supra note 72, Article 6.

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impose. In the modern era of interdependency and state owned enterprise, the blockading state will probably restrict this possibility severely to avoid the chance of military vessels and aircraft being used to circumvent the blockade. The danger of circumvention is particularly acute with regard to military transports. Such aircraft can be unloaded quickly and in a manner that would hinder intelligence collection. Thus, efforts to monitor them to ensure they are not being used to frustrate blockade restrictions would be difficult. Additionally, vessels and aircraft carrying humanitarian supplies may pass through blockades.142 Because of the impossibility of visit and search of aircraft, it would be advisable to set up a clearance procedure for these missions.143 Although this would be a further restriction on neutrals, it should not unduly affect the neutral belligerent balance because the right to deliver the supplies derives from humanitarian concerns rather than the interest of neutrals in trade. Indeed, the actual interest involved is that of the parties in the blockaded state for whom the supplies are destined, not of the neutral state. Furthermore, the interest of belligerents in maintaining an effective blockade weighs heavily in the equation because in the absence of visit and search humanitarian missions could easily mask resupply efforts. The last accepted exception to the general rule of universal application is based on the principle of force majeure. Traditionally, vessels in evident distress were allowed through a blockade to reach the safety of port, a right which continues to be recognized today by the United States Navy.144 There is no question that it applies to aircraft. Nevertheless, force majeure offers parties wishing to breach an aerial blockade by feigning distress an attractive means of doing so. In the absence of visible external damage there is virtually no way to verify that an aircraft is in fact in distress. Despite this problem, force majeure is such an established principle that any reasonable analysis will conclude that the exception must be retained. Fortunately, force majeure is unlikely to be misused in any extensive way because this would alert the blockading force to the perfidy. Should this happen, the blockading force would then be justified in very stringently enforcing the blockade against aircraft of that state alleging distress; the onus of responsibility would then lie on the breaching state. The more difficult question is what action by the blockading force

142 NWP 9, supra note 4, sec. 7.7.3, citing International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para 2095–2096 (1987). 143 This has been done for the aerial embargo of Iraq and Kuwait. See S.C. Res. 670, supra note 1, paras 3–4. 144 NWP 9, supra note 4, sec. 7.7.3, specifically mentions aircraft. See also Declaration of London, supra note 72, Article 7; The Hurtige Hane, 3 C. Rob. 324, 165 Eng. Rep. 480 (1799); The Fortuna, 5 C. Rob. 27, 1 Eng. Pr. Cas. 417, 165 Eng. Rep. 685 (1803); The Elizabeth, Edwards 198, 165 Eng. Rep. 1081 (1810); The Panaghia Rhomba, 12 Moore 168, 14 Eng. Rep. 874 (P.C. 1858); The Diana, 74 US (7 Wall.) 354, 19 L. Bd. 165 (1868); The Nuestra Senora de Regala, 84 US (17 Wall.) 29, 21 L. Bd. 596 (1872).

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is defensible if a single or only a few misuses are uncovered. Given the interests involved, subsequent claims of force majeure would need to be honored since the goal of foreclosing use of a technique which has resulted in breach on only limited occasions is outweighed by the severity of a use of force sanction. The remedy would, thus, not be found in refusing to honor future force majeure claims, but instead in utilizing non-blockade related political or economic sanctions. To summarize, aerial blockades must be established in nondiscriminatory ways and traditional exceptions must be adhered to. Nevertheless, there is no requirement that they apply to both ingress and egress, that measures of identification be equally applied, or that a blockade of all aerial traffic be declared at the outset. In fashioning a viable operational plan, consideration of each of the caveats will contribute to mission effectiveness.

6.2.2 Declaration and Notice In order to be binding, a blockade must be declared,145 and all parties that might be affected by it must be provided notice of its existence.146 Since the declaration of a blockade is ‘‘a high act of sovereignty,’’ it has to be made either by the national government or an authorized agent.147 In the United States, the National Command Authority issues the declaration. Authority to do so can be delegated to a subordinate official, most likely the on scene commander.148 Thus, blockades cannot generally be unilaterally declared for short term tactical reasons by operational commanders. This limitation reflects the politically sensitive nature of interfering with neutral commerce. The declaration itself should at least set forth the date the blockade is to begin, its geographic limits, and any grace period in which neutral vessels or aircraft may leave the area to be blockaded.149 With regard to this last requirement, a blockade only against ingressing vessels or aircraft may become effective immediately. Applied to egress, the generally accepted practice is to allow a sufficient period for neutral forces to exit. However, no precise grace period has been established.150 In the absence of a set period, the reasonable approach is to evaluate each situation on a case by case basis. 145

NWP 9, supra note 4, sec. 7.7.2.1; 3 PIL, supra note 9, at 47. NWP 9, supra note 4, sec. 7.7.2.2. 147 Id. sec. 7.7.2.1.; The Hendrick and Maria, 1 C. Rob. 146, 165 Eng. Rep. 129 (1799); The Rolla, 6 C. Rob. 364, 165 Eng. Rep. 963 (1807). 148 NWP 9, sec. 7.7.2.1 n. 130. 149 Id. sec. 7.7.2.1; Colombos 1967, at 722. 150 Oppenheim 1952, at 717. For example, during the First World War, the grace period was 10 days during the blockade of Austria-Hungary and Albania, four days in the case of the German East Africa blockade three days with regard to the Turkish coast of Asia Minor, and two days in the blockade of Cameroon and Bulgaria. Colombos 1967, at 723. 146

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There is no obligatory method for providing notification of a blockade’s existence. Instead, the key is that the notification be made in a manner that is effective, i.e., actually likely to place concerned parties on notice.151 Though notification will usually be made through diplomatic channels, and though United States practice also includes a notification by the on scene commander to local officials,152 most commentators agree that common notoriety will suffice.153 The major dispute concerning notification is over whether actual or merely constructive notice is sufficient for a ‘finding that a party is in breach. Historically, the continental powers demanded actual notice. By contrast, British and American practice was to require only constructive notice.154 The Declaration of London adopted the latter approach by creating a presumption of knowledge if a vessel left port following the declaration of the blockade and a period adequate to allow diplomatic notifications to be disseminated to all vessels.155 Today, the United States adheres to the view that ‘‘knowledge may be presumed once a blockade has been declared and appropriate notice provided to affected governments.’’156 Applied to aerial blockades, the balancing test would suggest a general tightening of the standards. Since the last resort enforcement mechanism in a breach of aerial blockade situation (shootdown) is absolute, neutral commerce is affected to a greater degree than in maritime enforcement. Even in a use of force scenario, a neutral merchantman appearing to breach a blockade is unlikely to suffer total destruction or loss of all hands on board. By contrast, as soon as force is used in an aerial intercept that is precisely the most likely result. Given the greater interference with neutral interests, belligerent rights to execute the blockade will necessarily be restricted. An appropriate adjustment is to define procedural matters more extensively in the declaration. Specifically, the declaration, or at least the formal notices of declaration, should set forth a means of communication between the potentially breaching aircraft and both interceptors and surface forces involved in monitoring airborne activity. Included should be the method by which the blockading force will attempt contact and by which the blockading force can be reached. Communications out procedures should be described, and the requirement to acknowledge receipt of warnings should be unambigously set forth. Finally, the declaration must specifically state that failure to comply with instructions received 151

NWP 9, supra note 4, sec. 7.7.2.2. See also Declaration of London, supra note 72, Articles 11–12. 152 NWP 9, supra note 4, sec. 7.7.2.2. Sample notification forms are included in NWP 9 at Annexes AS7-8 and 7-9. 153 Oppenheim 1952, at 783. 154 Id. The Anglo-American view appears to have gained the upper hand. Tucker 1955, at 292– 293. See also Alford 1967, at 349. 155 Declaration of London, supra note 72, Articles 14–16. NWP 9, supra note 4, sec. 7.7.4. 156 Complementing the use of force criteria should be comment on what acts the blockading force will deem evidence of hostile intent justifying self-defense. For example, illumination by fire control radar would certainly indicate hostile intent.

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from interceptors or to acknowledge contact with them may result in the use of force.157 Imposing this burden on the blockading power can hardly be viewed as onerous since only the more explicit drafting of a declaration is involved. Additionally, both neutral and belligerent interests will be served because a comprehensive declaration (or notice thereof) will contribute to the minimization of potential confusion. A similar tightening is merited, for precisely the same reasons, with regard to notice. It is certainly unrealistic to impose a requirement of actual notice when dealing with aircraft, for as a practical matter there is no way to be absolutely certain the breaching party is aware of the declaration. Unlike ships, aircraft cannot be stopped and boarded. However, considering the degree of interference represented by a shootdown, the blockading force must exhaust every means of notice prior to employing force. It would not be sufficient to rely solely on common notoriety or diplomatic notice. Notice could then be conveyed by the actions of the interceptor, and an attempt could be made to signal the intercepted aircraft to switch to a common frequency for further communications. Of course an exception to the visual acquisition requirement must be made in situations in which hostile intent on the part of the intercepted aircraft can be reasonably assumed based either on the specific actions of the aircraft, previously announced intentions, or past experience. The one requirement that might be relaxed vis-a-vis aerial blockades is the grace period. Since ships must take on provisions, fuel, and a crew prior to departure, a reasonable grace period may extend over several days or more. By contrast, aircraft can prepare for flight in a relatively short time frame. Therefore, assuming appropriate notifications have been made providing a more limited period for aircraft than vessels does not unduly interfere with neutral trade. On the other hand an aerial blockade of ingressing aircraft which is effective immediately is not acceptable. This contention derives from the physical impossibility of ensuring actual notice to airborne aircraft. Given the nature of aerial use of force, the balancing test would argue for at least some grace period to make absolutely certain that adequate time for notifications to be passed has elapsed. In light of modern methods of communication, though, it need not be unduly long.

6.2.3 Access to Neutral Areas It is universally recognized that blockades must not bar access to or departure from neutral countries.158 This maxim is as applicable to aerial blockades as naval blockades. However, though the principle is well accepted, the parameters of its

157 158

NWP 9, supra note 4, sec. 7.7.2.5. See also Declaration of London, supra note 72, Article 18. See supra note 94.

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implementation in practice are not. The main focus of contention has been the doctrine of continuous voyage, a doctrine which emerged in its fully developed form during the Civil War, albeit not without much controversy. It was also applied during the world wars, but since blockade operations tended to be justified on the basis of reprisal, the doctrine was not firmly established.159 Since 1945, there has been no need to apply it in the rather limited operations that have taken place. Today the status of continuous voyage remains unclear under international law, despite its endorsement by the United States Navy.160 Applying the doctrine to aerial blockades would be particularly difficult from a practical point of view. Due to the general principle of access, it is clearly not permissible to blockade all traffic to and from a neutral state. Therefore, to execute continuous voyage tactics it will be necessary to have advance information on which ingressing or egressing aircraft are involved in transshipment. For ships, this is accomplished via either a navicert procedure or, more likely, by visit and search. However, because visit and search of airborne aircraft are impossible, some procedure for determining the cargo carried prior to takeoff and of conveying that information to the blockading force would need to be set up if the doctrine is to remain viable as applied to aerial blockades. Developing a system analogous to the navicert would be extremely difficult. In the first place, the sheer volume of aerial traffic would make comprehensive coverage problematical. At the same time, the potential airfields from which traffic might originate are so numerous that any such system would be impractical to monitor and manage. Further, the speed of aircraft, even given modern communications techniques, would render it difficult to convey clearance data to the blockading force in sufficient time to permit it to be used effectively. Thus, for example, using IFF squawks to identify cleared aircraft would prove unreliable. One possible approach might be the use of daily passwords provided to pilots of aircraft which have been cleared. When challenged, the password would permit passage to the neutral territory. However, even if the system was workable from an administrative point of view, the susceptibility of the password to compromise would diminish its effectiveness. A greater obstacle to application of the doctrine in the aerial context is that certain neutral states might be unwilling to participate in an advance clearance system. With ships, the remedy for non-cooperation is visit and search. However, as this tactic is unavailable in aerial blockades, any ground based search system 159

NWP 9, supra note 4. sec. 7.7.4: Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or airfield with the intention of evading the blockade. It is immaterial that the vessel or aircraft is at the time of interception bound for neutral territory, if its ultimate destination is the blockaded area. There is a presumption of attempted breach of blockade where vessels or aircraft are bound for a neutral port or airfield serving as a point of transit to the blockaded area.

160

Id. The footnote to this section states that provisions to the contrary in the Declaration of London have been rendered obsolete through practice. Id. sec. 7.7.4 n. 137.

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might very well collapse as soon as the aircraft of a single state refused to participate. Would a blockading force actually shoot down neutral aircraft bound for neutral territory which had not obtained the proper clearance and which refused to turn back or land at a designated airfield? For political reasons, the answer may very well be no. Furthermore, given our balancing test, doing so might violate international law. In the first place, some neutral trade not destined for the blockaded state would surely be interfered with. The interests of neutrals in such trade is great, while the interests of the belligerent in it is nonexistent. Additionally, the enforcement mechanism, shootdown, is so severe that it would be difficult to identify a countervailing belligerent interest sufficiently weighty to offset it. It has been questioned whether even visit and search during continuous voyage operations are defensible; certainly, the much harsher enforcement mechanism of shootdown would be universally condemned as an excessive interference relative to belligerent interests, however those interests might be articulated. Of course, if aircraft of one state were permitted to pass, the incentive for others to continue securing clearance would rapidly fade away. Based on this analysis, the continuous voyage doctrine is unlikely to have any applicability in aerial blockades. Even if the doctrine is justified as a naval measure, it is not as an aerial one. Therefore, aerial blockades will have to comply strictly with the prohibition of interference with access to neutral territory, and rely on other measures of coercion to convince states engaged in transshipment to desist.

6.2.4 Effectiveness The most time honored principle of blockades is that to be legal they must be effective. This principle has been recognized judicially,161 in the Declarations of London162 and Paris,163 and in naval regulations.164 Generally, effectiveness is described as maintaining sufficient forces on station to render egress and ingress dangerous.165 An ability to effect total exclusion is not necessary. Nevertheless,

161 See, e.g., The Christopher, 2 C. Rob. 210, 165 Eng. Rep. 291 (1800) citing The Betsy in 1; The Drummond, 1 Dods 103, 165 Eng. Rep. 1248 (1811); The Nancy, 1 Act. 57, 12 Eng. Rep. 22 (P.C. 1809); The Olinde Rodriguez, 174 US 510, 19 S. Ct. 851, 43 L. Bd. 1065 (1899). 162 Declaration of London, supra note 72, Article 22. 163 Declaration of Paris, supra note 58, Article 4. 164 NWP 9, supra note 4, sec. 7.7.2.3. In the exchange of notes between Great Britain and the United States concerning World War I British measures, both sides agreed that the principle had achieved universal acceptance. Garner 1915, at 842. 165 ‘‘In order to be effective, it must be maintained by a surface, air, or subsurface force or other mechanism that is sufficient to render ingress or egress of the blockaded area dangerous.’’ NWP 9, supra note 4, sec. 7.7.2.3.

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since effectiveness is a question of fact, the extent to which breaches occur will certainly bear on whether attempting a breach is adequately dangerous to meet the effectiveness requirement.166 Additionally, because danger is the key, discontinuation of a blockade terminates its legal effect, and any subsequent enforcement efforts must be based on a new declaration.167 Applied to aerial blockades, it might be tempting to assert that because the use of force during an intercept is so ‘‘dangerous,’’ the requirement of effectiveness as evidenced by percentages of aircraft successfully breaching in relation to the number of attempts should be less stringent. This position assesses danger qualitatively, not quantitatively. However, danger has traditionally been described in terms of susceptibility to capture.168 The nature of the force available for employment against vessels attempting to elude capture has never been factored in. There is no reason to revise this approach for aircraft, though for clarity the criterion would be better expressed in terms of ‘‘intercept,’’ not danger. Assuming intercepted aircraft comply with all instructions, the question of the degree of force used will not even arise. This being the case, the blockading force should not benefit from a hypothetical situation which may never occur. The same analysis would apply to the argument that since the use of force is ‘‘more dangerous’’ in aerial instead of maritime intercepts, the requirement for effectiveness should be more stringent. Even though a similar position was proposed with regard to the principles of declaration and notice, in those cases it was based on the necessity of ensuring that before force is used the target understands the nature of the situation, i.e., that it is in breach of blockade. Here, assuming the enhanced knowledge requirements have been effective, it is the breaching party which controls the escalation of enforcement methods. It would be illogical to permit him to benefit (imposition of more stringent requirements on the blockading force) from his decision to raise the stakes. On the contrary, one would hope that international law creates disincentives to the development of situations in which use of force is made more likely. Blockades must also be continuously enforced. This norm, like that just discussed, needs no modification in application to aerial blockades. Further, compliance would not necessitate keeping aircraft airborne around the clock. In that continuity is an element of effectiveness, and because effectiveness is determined by susceptibility to capture, the only requirement would be that interceptors be able to respond in the event of breach. It is irrelevant whether those aircraft are airborne or sitting alert so long as intercept is feasible. This contention is 166

Declaration of London, supra note 72, Article 3; Colombos 1967, at 718; Jones, supra note 66, at 763. For example, in Hooper v. United States, the Court of Claims held a blockade not to be effective based on the extent of continuing trade in the area. Hooper v. US, 22 Ct. Cl. 408 (1887). 167 Alford 1967, at 352. However, continuity is unbroken if the blockade is discontinued due to adverse weather conditions or because the blockading force is in pursuit of a breaching vessel or aircraft. See, e.g., Id. at 353; The Frederick Molke, 1 C. Rob. 86, 1 Eng. Pr. Cas. 58, 165 Eng. Rep. 106 (1798); The Columbia, 1 C. Rob. 154, 1 Eng. Pr. Cas. 89, 165 Eng. Rep. 132 (1799). 168 The Drummond, The Betsy, and The Nancy, supra note 161.

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consistent with the neutral belligerent interests balancing test. The principle of effectiveness results from perceptions that neutral interests outweigh belligerent ones when the belligerent lacks the means of enforcement. If interceptors can actually conduct intercepts, then clearly the belligerent has the means of enforcement, and the basic requirement is met. Ultimately, aircraft present no unique issues when applying the principle of effectiveness. Whether any one blockade is effective remains a question of fact which will be evaluated primarily on the basis of the percentage of aircraft successfully breaching relative to the number that attempt to.169 Where the forces rendering the blockade effective are located is irrelevant.

6.2.5 Breach It is over the topic of breach that the greatest divergence of views occurs. In basic terms, breach is the passage of a vessel or aircraft into or out of a blockaded area without the permission of the blockading force.170 An essential element of the ‘‘offense’’ is knowledge, though there is a difference of opinion on whether constructive notice is sufficient to satisfy the requirement. However, as noted above, when considering aerial blockades it would be unreasonable to require actual notice.171 The remedy for breach is capture of the offending vessel and condemnation in a prize proceeding.172 At the time of capture the vessel or aircraft must be in delicto.173 However, there is disagreement over when the vessel is in delicto and, therefore, subject to capture. The Anglo-American view is that capture can take place at any time until completion of the voyage.174 The continental theory, on the other hand, as well as the Declaration of London, would limit capture outside the

169

The reader must be cautioned not to make the ‘‘calculation’’ using the number which have been dissuaded from attempting to breach. The issue is one of danger, i.e., likelihood of intercept. Successful breach is, therefore, an empirical indicator of effectiveness. Only in the absence of any attempt to breach will dissuasion become relevant to the calculation. 170 NWP 9, supra note 4, sec. 7.7.4. Oppenheim notes that there are four views on when a breach occurs. Some commentators require the use of force or ruse to break through the blockade. Others relax the requirement and require no force or ruse. A third view is that breach occurs when a vessel is moving in the direction of a blockaded area, though its papers indicate it should be headed elsewhere. Finally, there is the continuous voyage doctrine. Oppenheim 1952, at 785–786. 171 See discussion supra sec. 6.2.2. 172 NWP 9, supra note 4, sec. 7.9. Capture is also permissible in the event of refusal to identify oneself and resisting visit and search. Id. 173 Oppenheim 1952, at 788. 174 Id. at 789. See, e.g., The Imina, 3 C. Rob. 167, 1 Eng. Pr. Cas. 289, 165 Eng. Rep. 424 (1880).

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blockaded area to breaching vessels which have been continuously pursued. According to this view, if pursuit is broken off the right of capture ends.175 In light of twentieth century practice, there appears to be greater support for the Anglo-American stance. This contention is bolstered by the effect of increasing interdependency and advancing technology. Given interdependency, it becomes ever more important to make blockades as effective as possible. Permitting capture at any time during a voyage would certainly have a deterrent effect on attempted breaches. Additionally, it must be remembered that since the neutral party is willfully attempting a breach of a legal blockade, it has ‘‘unclean hands’’ and, thus, its interests should weigh less heavily. The existence of certain modern technologies also strengthens the AngloAmerican approach. Until this century, a breaching merchantman which managed to elude pursuit would have to be visually reacquired for subsequent capture to be effected. Though doing so might be the result of clever tactics, as often as not rediscovery was fortuitous. In a sense, the continental requirement of hot pursuit was analogous to that of effectiveness. If the blockading force lacked the means to locate the vessel with any certainty, then neutral interests carried greater weight. Today, using technology such as satellite imagery, radar, ELINT, SIGINT, and aircraft, locating vessels which have breached and are no being pursued can be a relatively simple matter. In fact, from the viewpoint of effectiveness, it may a better option to keep pursuing warships within the blockade area to deter other attempts at breach, while turning over the responsibility for tracking and capturing breaching vessels to forces not immediately occupied with maintaining the blockade. This would maximize the number of vessels breaching or attempting to breach which can be captured.176 A parallel benefit is that allowing for capture at any time following breach will actually serve to diminish the likelihood of the use of force. The more efficient a blockade, the less likely attempts will be made to breach it, and the more infrequently force will need to be applied. On the other hand, if a potential breacher knows he is home free once he eludes pursuit, then he has an incentive to make the attempt. The argument for the Anglo-American view applies equally well to aerial blockades. In fact, for a number of reasons it is even stronger than in the case of ships. First, in an effort to pull blockading aircraft from the area, a crafty opponent or neutral might send a number of aircraft out to attempt breach. Once the blockading aircraft were in pursuit, the opponent would then attempt a second breach with as many aircraft as available. The blockading aircraft, which are now 175

See Oppenheim 1952, at 789; 3 PlL, supra note 9, at 49; Declaration of London, supra note 72, Articles 17, 20. In the view of Nicholas Poulantzas, the laws of hot pursuit at sea should apply by analogy to aerial pursuit over the high seas. He argues, correctly so, that aerial pursuit over the high seas is not analogous to hot pursuit on land because of the differences in the nature of sovereignty over land and airspace above the high seas. See Poulantzas 1969, pp. 271–345. 176 A very good argument can be made that pursuit continues if the breaching vessel is monitored by some technological means from the time the pursuing vessel or aircraft breaks off.

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probably too far out to engage both the first and second waves simultaneously, will have to chose between the two. If they respond to the second, so much fuel may have been expended during the initial pursuit that they may be unable to engage the second wave aircraft for any length of time. This will encourage the use of force earlier than would normally be required. On the other hand, if they opt for the first, the second wave will escape. A possible result is that the blockading aircraft will be forced to quickly shoot down the first, turn, and then with little time remaining, attack the second.177 One tactical remedy is to create zones of engagement in which interceptors hand off breaching aircraft to assets stationed further out. The breaching aircraft would be monitored by means such as AWACS or surface vessels until they entered an area where friendly aircraft could be vectored to intercept them. As noted above, the efficiency of this system would have a deterrent effect that would ultimately lower the likelihood of use of force. Additionally, it enhances effectiveness by reasonably taking advantage of technological developments. Another issue regarding breach which may pose practical problems to effective enforcement involves capture.178 Aircraft and vessels which either breach or attempt to breach a blockade are liable to capture by the blockading force. When captured, they are sent to a port or airfield under belligerent jurisdiction and become subject to condemnation in prize proceedings. In many cases, a prize crew is placed aboard ships for the purpose of sailing them into port. Should this be impractical, they are simply escorted in. Obviously, with aircraft only the escort option is viable. Assuming the blockading force either controls airfields in the vicinity of the blockade or has executed agreements with allied states for the escort of breaching aircraft to their airfields, aerial capture (via escort) and condemnation will pose few unique problems. However, most potential aerial blockade operations are likely to be conducted by carrier based aircraft off the enemy coast and without accessible airfields. In such a scenario, the issue of how capture and condemnation can take place does arise. One unavailable option is escorting the aircraft to neutral airfields. In the first place, it is by now a well established principle of international law that belligerent 177

Of course, this scenario depends on the unavailability of additional interceptors. The problem is not so much the number of aircraft involved in the initial intercept (since a single fighter can engage multiple targets simultaneously), as it is being pulled out of weapon systems range. Whether blockading forces can maintain sufficient aircraft in combat air patrols (CAP) and sitting alert to preclude this possibility for any extended length of time is doubtful. It is even more doubtful if the aircraft are being used to support non-blockade related operations as well. 178 NWP 9, supra note 4, sec. 7.9. US prize proceeding involving aircraft and ships are governed by 10 U.S.C. sec. 7651–7681. Interestingly, until 1939 British prize courts were not authorized to handle cases involving aircraft. In that year a new Prize Act was passed which allowed for condemnation of aircraft, using the procedures and principles applicable to maritime capture. Spaight 1947, at 411. However, there is only one known prize case considering the capture of an aircraft (during World War Two), and it is not on point for it did not involve a breach of blockade or seizure for carrying contraband. Id.

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aircraft may not enter neutral airspace except in certain situations not applicable to the escort of breaching aircraft.179 Should belligerent aircraft nevertheless do so, an affirmative duty arises on the part of the neutral state to force the aircraft to land, confiscate it, and intern the crew.180 Based on these principles, an operation involving escort of breaching aircraft into neutral territory would be impermissible. Even more specific norms are applicable to capture. In the first place, any hostile act in neutral territory is prohibited.181 The category ‘‘hostile acts’’ includes capture. Furthermore, under American practice captured vessels may be brought into port only when necessary due to unseaworthiness, stress of weather, or lack of fuel or provisions, and must leave as soon as practicable.182 There is also some question as to whether a vessel may be sequestered in a neutral port pending a decision of a prize court.183 However, as to the United States, this question has been answered in the negative by the Supreme Court.184 In fact, if a wrongfully seized vessel is taken into a neutral port, the neutral country is under an obligation to release it and intern the prize crew.185 With regard to aerial blockades, there is no reason to depart from these principles. In fact, they may be applied even more strictly to aircraft, for in no circumstance can a prize crew be placed aboard. Thus, for example, the force majeure exception might apply to escorted aircraft, but would not apply to the escorts

179

This has been an accepted principle throughout the twentieth century. See, e.g., NWP 9, supra note 4, sec. 7.3.7; 1923 Draft Rules of Aerial Warfare, supra note 134, Article 40; Convention Concerning the Rights and Duties of Neutral Powers and Persons in War on Land (Hague V), October 18, 1907, Articles 1–2, 205 Parry’s T.S. 299, U.S.T.S. 540, 36 State 2310, 1 Bevans 723. The circumstances in which a belligerent aircraft can enter neutral airspace include: innocent passage above international straits and archipelagic sea lanes, when unarmed if the neutral nations so permits and applies any conditions impartially, when on medical missions, and in force majeure situations. NWP 9, supra note 4, sec. 7.3.7. The concept of sovereignty over airspace was recognized in the 1919 Paris Convention for the Regulation of Aerial Navigation, Article 1, 11 L.N.T.S.173. That article was inserted verbatim in the 1944 Chicago Convention. Convention on International Civil Aviation (Chicago Convention), December 7, 1944, Article 1, 15 U.N.T.S. 295, T.I.A.S. 1591, 61 Stat. (2) 1180, 3 Bevans 944. 180 NWP 9, supra note 4, sec. 7.3.7.1; AFP 110-31, supra note 132, para 2-6c; 1923 Draft Rules, supra note 134, Article 42; 3 PIL, supra note 9, at 9. For a discussion of the issue of belligerent aircraft entering neutral airspace, see Spaight 1947, at 420–460. An excellent analysis of the development of the principle of sovereignty over airspace is found in Phelps 1985, pp. 266–274. 181 NWP 9, supra note 4, sec. 7.3; Hague V, supra note 179, Article 1; Convention Respecting the Rights and Duties of Neutral Powers in Maritime War (Hague XIIl), October 7, 1918, Article 2, 205 Parry’s T.S. 395, U.S.T.S. 545, 36 Stat. 2415, 1 Bevans 723. 182 NWP 9, supra note 4, sec. 7.3.2.3. See also Hague XIII, supra note 181, Articles 21–22. 183 Id. Article 23. 184 See The Steamship Appam, 243 US 124, 37 S. Ct. 337, 61 L. Ed. 633 (1917), in which a British steamship seized by a German warship was taken to Hampton Roads. The court ordered the ship released to its British owners. 185 NWP 7.3.2.3; Hague XIII, supra note 181, Article 3.1.

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themselves unless they were also in distress. As a result, it could be argued that based on the general principle of exclusion of belligerent aircraft, the escorts would have to permit a captured aircraft in distress to leave their control to seek assistance in a neutral state. For planning purposes, therefore, neutral airfields cannot be used to recover breaching aircraft which have been captured and are under escort. Does this imply that aerial blockades are unworkable except in the absence of one’s own or allied airfields? It does not because it is unreasonable to impose a requirement that the breaching aircraft be susceptible to actual capture. Capture is merely one remedy available to the blockading force. It need not be resorted to in every instance. Instead, the blockading force could simply turn aircraft as they enter the blockaded area. Where those aircraft subsequently recover is of little concern to the blockading force. In arriving at this conclusion, it is necessary to reconsider the principle of effectiveness. As discussed earlier, effectiveness requires that ingressing or egressing aircraft or vessels be faced with danger, danger having been interpreted as susceptibility to capture. Yet, the underlying purpose of effectiveness is to ensure enforcement does not occur in an haphazard or inconsistent manner, not to mandate a particular mode of enforcement. Therefore, the question is whether breaching aircraft will be deterred if capture is not an option available to the blockading force. It should be clear that they will be, for if the breaching aircraft do not turn back, they run the risk of being shot down. Obviously, this sanction will have a greater deterrent effect than capture and condemnation. This contention also comports with the balancing test. Since the deterrent effect of possible shootdown will enhance effectiveness, belligerent interests are served. At the same time, neutral interests are also served because being forced back out of the blockaded zone is a lesser interference with neutral rights than capture. Thus, lack of access by belligerent aircraft to neutral territory should pose no legal impediment to imposition of an aerial blockade. A final issue posed by breach of aerial blockades is the use of force. It is well established that force may be used against vessels which breach or attempt to breach a blockade and, resist capture.186 Force is justified in the case of even neutral merchantmen because in resisting they take on the character of enemy vessels.187 However, the use of force by aircraft will almost certainly result in death of all aboard, whereas ships can be disabled in most instances, and death, although possible, is not inevitable.

186

See, e.g., NWP 9, supra note 4, sec. 7.9; Tucker 1955, at 336–337 and n. 11. NWP 9, supra note 4, sec. 7.5.2. Note that a lesser degree of force is authorized against enemy passenger vessels or aircraft (or those neutral vessels or aircraft which have acquired enemy character). Generally, they are exempt from destruction unless they are being used for a military purpose, such as transporting troops or supplies, or have failed to comply with the instructions of intercepting aircraft or vessels. NWP 9, supra note 4, sec. 8.2.3. 187

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In order to comport with international legal norms, methods of warfare, including aerial engagements, are assessed in terms of necessity, humanity, and chivalry.188 It is the principle of humanity which is primarily implicated by the use of force during an aerial blockade.189 Reduced to basics, this principle disallows that force not actually required to achieve a legitimate military objective. As a result, causing unnecessary suffering or employing a degree or mode of force not proportionate to the ends to be achieved is forbidden.190 Thus, the question becomes one of whether the end of cutting off all trade with the enemy justifies downing breaching aircraft. In other words, the principle dictates a balancing test. This is a troubling matter that requires the drawing of subtle distinctions. When assessing certain earlier blockade principles, the likelihood of death resulting from the use of force was asserted to compel increased restrictions on blockade practices. Yet in those cases the restrictions derived from either a concern that force might be used against a party that was unaware of the nature of the operation or from the inability to distinguish definitively between those who were knowingly in breach and those who were not in breach or lacked knowledge. In other words, given the certainty of death, there was a desire to only employ force against those who volitionally subjected themselves to it. The issue here, though, is not when force can be used, but rather if it can. We know that the possibility of death resulting from blockade enforcement is acceptable under international law, for force can be employed against surface vessels that are in breach. However, in aerial engagements the loss of life is a probable, not merely possible, result. This being the case, should certainty of death alter the equation? Logically, it should not. The principle of humanity does not revolve around the likelihood of death; instead, it asks whether deaths caused are justified by the relevant objectives. In the case of aerial and naval blockades the objective is identical-shutting down trade to the enemy. Thus, the same analysis should apply to both. What would affect the balance between suffering and objectives is the relative degree of suffering caused by enforcement of aerial and naval blockades. If enforcement of an aerial blockade would actually result in a far greater number of deaths than enforcement of a naval blockade, then it would not be appropriate to analogously rely upon the naval blockade authorization of deadly force. Therefore, the query is whether aerial blockade enforcement is inherently more deadly in quantitative terms. As a general matter it would appear not to be. This conclusion derives not from calculations comparing sizes of ship and aircraft crews or of the relative number of aircraft and vessels passing into the blockaded zone. Instead, it relates back to the issue of certainty of death. Given the likelihood that an aerial engagement will

188

AFP 110-31, supra note 132, sec. 1-3a; NWP 9, supra note 4, sec. 5-2. Professor McDougal and Justice Feliciano have argued that the concept of unnecessary destruction is operative in blockade situations. McDougal and Feliciano 1961, at 494–495. 190 Id. 189

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result in the death of all aboard the breaching aircraft, the potential cost of being caught is much higher. This is bound to have a deterrent effect on those attempting breach. Indeed, even if an aerial blockade lacked credibility initially, the first shootdown would resolve doubt instantaneously. By contrast, a maritime blockade runner runs a much lower risk of death in each attempt responded to by force. In making this calculation, it is important to focus on the probability of death as to each individual attempt. Aerial use of force will result in death nearly 100% of the time.191 Though no precise estimates are available, the probability is clearly much lower in naval use of force. Assuming, therefore, an equal chance of being intercepted, naval blockade runners are less likely to be deterred. This increases the likelihood that breaches will be attempted. Therefore, even though the probability of force resulting in death in a single incident is lower, the cumulative effect will be greater suffering. One might be tempted to allege that this conclusion does not factor in the relative probability of being intercepted. For example, if the likelihood of force causing death was 100% and the probability of being intercepted 20% in aerial blockades, but the figures for naval blockades were 40 and 90% respectively, then there would be a greater deterrent effect in naval use of force. This would in turn result in more attempts at aerial breach, and aerial blockades would be deemed potentially deadlier over the long run. The application by analogy to aerial blockades of international law’s resolution of the humanity issue in its naval variant would, resultingly, be questionable. However, because of the requirement of effectiveness, a recalculation of deterrent effect is not needed. Presumably, the hypothetical aerial and naval blockades under consideration are both effective. If they were not, the blockades would be illegal per se, and the use of force issue would never arise independently. Of course, there is a range of effectiveness, but the extent of that range could not possibly offset a probability of death approaching 100% in the case of aerial use of force. Therefore, the deterrent effect calculation remains valid and would support the use of force in aerial blockades as consistent with the principle of humanity. One additional possibility with regard to the humanity principle is that it is not the suffering factor which should be used to distinguish between naval and aerial use of force, but rather the objective component of the balance. It may be, for example, that the contribution of aerial transport to the economy of a blockaded state is extremely low. If the objective is unimportant, will the certainty of death preclude the use of force? Presumably, the balancing should take place in a case by case fashion since airlift may be critical for one state, but not another. Despite this reasoning, 191

Virtually all fighter pilots will attest to the difficulty of disabling, but not destroying, an airborne aircraft. One attempt to do so occurred in February 1973 when a Libyan airliner entered airspace over Israeli occupied territory. The airliner crashed with the loss of 108 lives. McCarthy 1984. Similarly, an attempt by Soviet airliners to ‘‘warn’’ an Air France airliner which had reportedly stayed over East Germany in April 1952 resulted in the wounding of passengers. Lissitzyn 1953.

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international law practice vis-a-vis evaluating blockades would seem to preclude the necessity of having to do so. Arguably, the same need to conduct individualized balancing is present in the case of naval blockades, for maritime trade may or may not be essential to a particular state. Yet, there has never been a requirement for an individualized suffering/objective analysis when assessing naval blockades for compliance with international law. Instead, international law rejects individual balancing by authorizing the use of force across the board, regardless of the reliance, or lack thereof, of the blockaded state on international trade. If law is to be consistent, the same approach would apply in the case of aerial blockades. Still, an argument could be advanced that maritime trade as a whole is so much more important than aerial trade that the same generalized suffering/objective conclusion should not apply to both. However, the assertion is unsupportable in the modern interdependent world. Though most nations continue to rely on maritime lines of communication, aerial transport has become ever more important. The Berlin airlift aptly illustrated the potential of aerial resupply. Further, though the cargo capacity of ships exceeds that of aircraft, given today’s high technology warfare, items critical to the war effort can be flown in. For example, avionics can easily be carried aboard nearly all transports. Additionally, aircraft have the advantage of speed, an advantage which may be determinative in the highly mobile, fast paced conflicts most likely to occur in the current international environment. To assert that airlift is never as important as sealift is simply inaccurate. Without being able to draw a general conclusion divorced from a particular context, an argument that a different balancing should occur in the case of aerial blockades is unlikely to find much informed support. Ultimately, there is a point where suffering so outweighs objectives that despite an unwillingness in international law to engage in case by case analysis, the presumption of compliance with the humanity principle must become rebuttable.192 When this should occur is a topic likely to generate much debate. Probably the best approach would be to apply a standard analogous to the abuse of discretion doctrine in domestic law. In other words, the preference under international legal principles (pertaining to blockade) for avoiding resort to individualized analysis should give way when it generates clearly unsound results, i.e., when no reasonable man would come to the conclusion that the risk to life created by the use of force in a blockade is outweighed by the need to keep the enemy isolated. A real world scenario presenting this situation is unlikely, but not unthinkable.

192 One commentator, reviewing such documents as Protocol I Additional to the Geneva Conventions and the Statute of the International Court of Justice, has concluded that:

Every legal order recognizes that in the pursuit of even the most honorable of interests, there comes a point when the consequences incurred are so grim that they outweigh any possible benefits and oblige the individual, even If he has the law on his side, to stand down: obedience to the law may certainly be a very high value indeed, but it is never a purpose unto itself. Jahn 1984, 455.

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The fact that the general principle of humanity does not prohibit aerial blockades per se does not exhaust the use of force inquiry. It is possible that customary norms have emerged by virtue of state practices and expectations that would preclude forceful responses to aerial breaches. A number of earlier commentators have argued that there is a right to attack non-military, even neutral, aircraft which fail to comply with the instructions of an intercepting force.193 However, in light of post World War II experiences it is useful to reconsider this contention. Over the course of the past 45 years there have been a surprisingly high number of shootdowns not directly related to ongoing combat. Some have involved military aircraft. For example, in August, 1946, Yugoslavian interceptors forced one American military transport to crash and downed another. President Tito apologized for the incident and ordered his air force not to engage transports even if they entered Yugoslavian airspace intentionally and refused to land when instructed to do so.194 A series of similar incidents occurred throughout the 1950s. In both 1952, and 1954, Soviet aircraft shot down American B-29s over Hokkaido, Japan.195 A USAF F-84 was also downed by Czech fighters along the German-Czech border in 1953,196 and a US Navy P-2 was destroyed by the Soviets over Hokkaido in 1959.197 Additionally, in 1954, the Chinese shot down a Cathay Pacific Airliner

193

Tucker, writing in 1955, noted: Of course, if a neutral aircraft attempts to flee upon being summoned, or offers any form of resistance to a belligerent military aircraft, then the latter is entitled to resort to force, and even––if necessary––to destroy the aircraft.

Tucker 1955, at 355 n. 62. However, he also noted in the same work that while ‘‘(t)here is no apparent reason why aerial warfare should be thought of as an exception… it has frequently been contended that given the special circumstances attending aerial hostilities the scope of the immunity from direct attack granted non-combatants necessarily must prove more restrictive than elsewhere.’’ Id. at 110. Spaight makes a similar argument, explicitly including in the possibility the downing of a civil airliner that refuses to comply with instructions to land or proceed to a designated place. Spaight 1947, at 399. Article 50 of the 1923 Draft Rules of Aerial Warfare, supra note 134, and Article 111 of the Harvard Research, The Harvard Research 1939, also contemplate the use of force against non-military aircraft which fail to follow instructions of interceptors. 194 See ‘‘Note to Yugoslav Charge D’Affaire,’’ 15 Dep’t. St. Bull 417 (1946): ‘‘Message from Ambassador Patterson,’’ 15 Dep’t. St. Bull. 418 (1946); ‘‘Facts Relating to Flights of American Planes Over Yugoslav Territory,’’ 15 Dep’t. St. Bull. 501 (1946); Majid 1986, 201. Compensation of $30,000 per person killed was paid, though the payments were labeled ex gratia. Id. It is interesting to note that the American explanation of the overflights was that both were due to navigational errors caused by weather. The United States did not assert that a use of force response was illegal under international law per se. See documents cited in this endnote. 195 1956 I.C.J. Pleadings, Aerial Incident of October 7, 1952 (US v. USSR); 1959 I.C.J. Pleadings, Aerial Incident of November 7, 1954 (US v. USSR). 196 1956 I.C.J. Pleadings, Aerial Incident of March 10, 1953 (US v. Czech.). 197 1958 I.C.J. Pleadings, Aerial Incident of September 4, 1954 (US v. USSR).

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which they reportedly mistook as a Nationalist Chinese military aircraft targeted against a military installation at Port Yulin.198 In each of these cases, condemnation focused on the facts that the aircraft were unarmed, that they were not intentionally violating foreign airspace, and that the incidents took place during peacetime.199 Yet when the Soviets shot down an American U-2 flying over Soviet territory in 1960, there was a general lack of outcry against the action.200 This difference in reaction suggests that the forceful interception of military aircraft, including unarmed transports, is permissible even during peacetime if those aircraft are engaged in a mission directly related to a military purpose. In other words, such incidents tend to be judged according to the principle of humanity, specifically the concept of proportionality.201 On the other hand, care must be taken by the intercepting state to ensure that before force is authorized in a particular case, there is no question concerning the nature of the flight. Clearly, sensitivity over the downing of even military aircraft is particularly acute in the world community today. There have also been a large number of shootdowns involving civilian aircraft. Among the more noteworthy are: the 1952 destruction of an Air France airliner over Berlin; a Bulgarian downing of an El Al airliner in 1955; destruction by the Israeli Air Force of a Libyan airliner over the Sinai Peninsula in 1973; the forced landing of a Korean Airlines aircraft in the Soviet Union in 1978; and, of course, the shootdown of KAL 007 over the Soviet Union in 1983.202 Of these, the El Al, Libyan Airlines, and KAL 007 incidents provide the most fertile ground for exploring world reaction to the downing of civilian aircraft.

198 Phelps 1985, at 278, citing Keesings Contemporary Archives 13733 (1954). In their note to the British, the Chinese asserted that the attack was accidental and apologized for it. Additionally, the note suggested that if the aircraft had been a military transport not on an aggressive mission, the Chinese would not have fired on it. In other words, they appeared to take Tito’s approach. See Id. 199 See memorials cited at notes 195–197. 200 Phelps 1985, at 287. 201 In the Yugoslavian and Chinese cases, suggestions by the guilty states that they would employ a more restrictive test cannot be viewed as establishing any binding principle. First, the political context must be considered. In 1946 tensions were starting to emerge between the independently minded Yugoslavs and the Soviets. Thus, it would not have been politically wise to alienate the West. Similarly, in 1954 the Korean War had been over for a very short period. Again, antagonizing the West would not have been fruitful. In both cases it was much more profitable politically to admit responsibility and allege accident. At the same time, it is instructive to look at the responses of the rest of the world. There is no indication that there was anything approaching a consensus that states could never use force in responding to aerial intrusions. 202 See Cheng 1985, p. 55; Richard 1984, p. 148; Morgan 1988, pp. 204–210; Phelps 1985, at 285–291. See also generally Hughes 1980, Donahue 1989.

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In the Bulgarian shootdown the United States, Great Britain, and Israel took the case to the International Court of Justice.203 Though for jurisdictional reasons the court never considered the merits of the case,204 the memorials submitted by the parties illustrate the attitude towards such acts. Each of the plaintiffs relied on the Corfu Channel decision as positing a principle that states should not unnecessarily endanger the citizens or property of other states.205 Specifically, they characterized Corfu Channel as a case demanding compliance with the principle of humanity.206 Applying this principle, Great Britain argued that under no peacetime circumstances could an airliner ever be shot down,207 whereas the United States asserted that in order to justify such a use of force, an articulable security interest would have to be advanced.208 Israel concentrated on expressing the concept of proportionality in more general terms.209 Ultimately, Bulgaria did acknowledge responsibility and paid $200,000 to Israel,210 the maximum liability under the Warsaw Convention.211 The Israeli shootdown of the Libyan airliner is particularly interesting factually. Before being downed, the airliner traveled over a number of sensitive military installations and failed to comply with instructions to land. The Libyan copilot

203 See 1959 I.C.J. Pleadings, Aerial Incident of July 27, 1955 (Isr. v. Bul., US v. Bul., UK v. Bul.). 204 Case Concerning the Aerial Incident of July 27th, 1955 (Isr. v. Bul.) 1959 I.C.J. 127. 205 Corfu Channel Case (UK v. Alb.), 1949 I.C.J. 4. Also cited as support was an arbitral award, Garcia v. US (Mex. v. US), 4 U.N.R. Int’l Arb. Awards 119, 123 (1928). The case, heard by the US Mexican Claims Commission, involved the shooting by US law enforcement officials of a young child crossing into the United States on a raft. The act was held illegal under international law on the basis that ‘‘the importance of preventing or repressing the delinquency by firing (must be) in reasonable proportion to the danger arising from it to the lives of the culprits…’’ Memorial of Great Britain, 1959 I.C.J. Pleadings, supra note 203, at 362. In other words, the principle of proportionality applies. 206 Memorial of Israel, 1959 I.C.J. Pleadings, supra note 203, at 84–85; Memorial of the United States, 1959 I.C.J. Pleadings, supra note 203, at 214–215; Memorial of Great Britain, 1959 I.C.J. Pleadings, supra note 203, at 358. 207 Id. 358. 208 Memorial of the United States, 1959 I.C.J. Pleadings, supra note 203, at 242. 209 Referring to humanity, the Israeli memorial noted:

In all systems of law, including international law, this is the test for measuring the degree of violence which may justifiably be used to protect rights recognized by the law, and particularly the degree of violence used when performing acts by their very nature dangerous. In the Corfu Channel case the Court relied on this principle as a basis for the international responsibility of Albania when mine fields laid in Albanian waters constituting an international strait caused damage to units of the Royal Navy and death to members of its military personnel. The Court was merely applying an already existing principle of international law to the particular circumstances of that case. Memorial of Israel, 1959 I.C.J. Pleadings, supra note 203, at 84–85. 210 Donahue 1989, at 59. 211 Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 2 Bevans 983, 137 L.N.T.S. 11.

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claimed he believed he was being escorted by Egyptian, not Israeli, fighters. Further complicating the situation was the fact that the Israelis claimed they had intelligence indicating Arab terrorists planned to make an attack on an Israeli population center using an aircraft loaded with explosives.212 World reaction to the incident, which resulted in 106 deaths, was one of nearly unanimous condemnation of the Israeli actions. Among the international organizations castigating Israel were the International Civil Aviation Organization (ICAO),213 the UN Commission on Human Rights, and the International Federation of Airline Pilots Associations (IFALPA).214 Though Israel did not admit guilt, it did acknowledge that it would not have fired on the aircraft if it knew it was carrying passengers.215 It also made payments, which it characterized as ex gratia, of between $30,000 and $40,000 per victim.216 The most important incident bearing on the use of force against civilian aircraft was the destruction of KAL 007 by the Soviets on 31 August 1983. Though there continues to be dispute over exactly what transpired, it is clear that at the time the aircraft was destroyed it was some 500 NM off course and had passed over two sensitive Soviet military areas.217 The response to this shootdown was one of near universal outrage, primarily on the basis that it violated the principle of humanity. This theme was first made clear in the UN Security Council debate which followed the incident.218 Only a Soviet veto defeated passage of a resolution by the Council to the effect that ‘‘such use of force against international aviation is incompatible

212

Phelps 1985, at 288; Donahue 1989, at 59. 28 ICAO Bull. 13 (July 1973). 214 Donahue 1989, at 60. 215 N.Y. Times, Febraury 26, 1973, at 1, col. 4. 216 Majid 1986, at 203. 217 Cheng 1985, at 49. The sensitive areas were Petropavlovsk Naval Base on the Kamchatka Peninsula and Korsakov Naval Base and Dolinsk-Sokol Air Base on Sakhalin Island. Id. The Soviet report on the incident claimed that the radar blips of a US RC-135 and KAL 007 merged for a period, and that when they separated one aircraft headed towards Alaska, while the other flew towards the Soviet Union. Thus, the Soviets believed the aircraft was a RC-135. Further, it alleged that the aircraft was flying with its navigational and strobe lights off and its cabin lights extinguished. Supposedly, the aircraft ignored Soviet instructions over Kamchatka to turn back. When it reentered Soviet airspace over Sakhalin, Soviet interceptors again tried to turn the aircraft using standard intercept procedures, i.e., rocking wings, flashing lights on and off, and contacting the aircraft by radio. When they received no response, tracers were fired. Again there was reportedly no response, and the aircraft was downed with rockets. Preliminary Information on the Progress of the USSR Investigation (Soviet Report), at Report of ICAO Fact-Finding Investigation (December 1983), app. F, para 2.1–2.4, reprinted in 23 I.L.M. 865, 911-914. The evidence appears to be to the contrary. The transmissions of the Soviet interceptors were monitored and taped throughout the encounter. The transcripts indicate that the Soviet pilots noted that the navigation and anti-collison lights were on, and no attempts were made to order KAL 007 to land. Cheng 1985, at 54. The ICAO report concluded that there had been insufficient efforts to identify the aircraft visually. ICAO Report, supra, para 2.12.10. For a discussion of the conflicting claims in the context of an incident study, see Morgan 1988, at 218–225. 218 UN Doc. S/PV.2470 (1983), reprinted in 22 I.L.M. 1114 (1983). 213

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with the norms governing international behavior and elementary considerations of humanity.’’219 However, the ICAO passed a resolution containing identical language in September.220 The ICAO also instituted a fact finding investigation under the authority of the Secretary General and directed its Air Navigation Commission to review the Chicago Convention to see whether changes could be made to it which might preclude such an incident from reoccurring again in the future.221 After considering the reports of both groups, the ICAO Council passed a resolution ‘‘reaffirming’’ that ‘‘whatever the circumstances which… may have caused the aircraft to stray off its flight plan route, such use of armed force constitutes a violation of international law, and invokes generally recognized legal consequences.’’222 Subsequently, a proposal for an amendment to the Chicago Convention, labeled Article 3 bis, was adopted by unanimous consent at the 25th Session (Extraordinary) of the ICAO Assembly on 10 May 1984.223 The new provision, which has yet to secure ratification by the necessary 102 states, provides that ‘‘the contracting states recognize that every state must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of the aircraft must not be endangered.’’224 There is disagreement over whether Article 3 bis creates a new norm of international law or is only declaratory of existing law based on the principle of humanity. However, use of the term ‘‘recognize,’’ in light of commonly accepted rules of interpretation, indicates that the latter view is more supportable.225 Condemnation of the Soviet shootdown extended well beyond the UN and ICAO. The European Parliament protested the act,226 IFALPA approved a recommendation to members not to fly to the USSR for 60 days,227 all of the world’s major civil aviation countries temporarily discontinued flights into the Soviet

219 The text of the draft resolution (S/15966/Rev.l) is reprinted at 22 I.L.M. 1148 (1983). Poland also voted against the resolution, and the P.R.C., Guyana, Nicaragua, and Zimbabwe abstained. UN Doc. S/PV.2476 (1983) reprinted in 22 I.L.M. 1138, 1144 (1983). 220 ICAO Council Resolution, reprinted in 22 I.L.M. 1149, 1150 (1983). Czechoslovakia and the USSR voted against the resolution, and India, Algeria, and China abstained. Id. at 1150. The resolution was subsequently endorsed by the ICAO assembly. The vote was 65 to 10 with 26 abstentions. Id. at 1149. 221 Id. at 1151. See also ICAO Council Resolution, reprinted in 22 I.L.M. 1152 (1983). 222 ICAO Council Resolution, Mar. 6, 1984, reprinted in 23 I.L.M. 937 (1984). 223 Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), May 10, 1984, reprinted in 23 I.L.M. 705 (1984). 224 Id. at 706. 225 The effect of Article 3 bis has generated much interest in the international legal community. For a discussion of this issue, see Cheng 1985, at 60–61; Fitzgerald 1984; Richard 1984; Phelps 1985; Milde 1984. 226 Majid 1986, at 210. 227 IFALPA Press Statement, September 6, 1983, reprinted in 22 I.L.M. 1218 (1983).

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Union,228 and many states suspended Aeroflot landing rights.229 Without question, a broad consensus was reached that, at least in the circumstances presented by this case, destruction of a civil airliner was a violation of international law. Ultimately, the question is the extent to which these post World War II incidents may have resulted in a modification of accepted blockade practices as applied to the aerial regime. In other words, even assuming the conclusion reached earlier that the principle of humanity does not generally prohibit the use of force during an aerial blockade is correct, has either customary or treaty law narrowed acceptable practice? For example, does the repeated condemnation of the downing of unarmed aircraft suggest that, independent of the principle of humanity, a consensus has been reached forbidding such acts? One might argue that the contextual framework of the incidents is too dissimilar to that of aerial blockades instituted during hostilities to be of any analytical value. After all, warfare by its very nature implies the use of measures that would clearly be unacceptable during times of peace. It would not be unreasonable, therefore, to assert that extension by analogy of peacetime norms to warfare is seldom justifiable. Such a view, though, is overly restrictive. It must be remembered that in the case of blockades the overriding factor is interference with the rights and interests of neutral states. In other words, concern centers on the use of force against a nation (its citizens) with which the belligerent is at peace. Furthermore, the interests of the state using the force could arguably be said to be greater than during blockade operations. In peacetime intercepts, the state is defending against a violation of its territorial integrity. This is a right which has been universally accepted for centuries. With blockades, by contrast, the belligerent’s interest is in cutting off trade to the enemy. While such operations may have implications for the survival of the state imposing it (as, for example, was the case with Great Britain during the Second World War), in much more limited scenarios the subjectively understood interests of the blockading state might not rise to the level of maintenance of territorial integrity. Thus, the interests involved during peacetime intercepts may be on par with, or even weigh more heavily than, those prevailing during hostilities. This being so, it would be overly hasty to reject any analogous applicability of peacetime intercept norms to aerial blockades. Assuming that the peacetime norms have probative value, then what effect do they have on wartime practices? Because the principle of humanity already applies to aerial blockades, the best answer is probably very little. As the brief discussion above indicates, the common thread underlying virtually every condemnation of a 228

Donahue 1989, at 63. See, e.g., Notes for a Statement by the Deputy Prime Minister and Secretary of State for External Affairs (Canada), September 5, 1983, reprinted in 22 I.L.M. 1199 (1983); Statement by Mr. Masaharu Gotada, Chief Cabinet Secretary, (Japan), Sept. 9, 1983, reprinted in 22 I.L.M. 1201 (1983); Civil Aeronautics Board Show Cause Order 83-9-43, September 8, 1983, reprinted in 22 I.L.M. 1208 (1983); and Civil Aeronautics Board Order 83-9-58, September 12, 1983, reprinted in 22 I.L.M. 1213 (1983). 229

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peacetime shootdown, whether of a military or civil aircraft, is the concept of humanity, particularly its proportionality component.230 Aerial blockades have already been shown to be compatible with this concept. Further, beyond humanity, no clearly distinguishable principle has emerged from either customary or treaty law that is applicable to the aerial use of force. Nevertheless, it is clear that the shootdown of an unarmed aircraft has become a matter of great political sensitivity. Therefore, even though the use of force against aircraft to enforce a blockade is justified under international law, it is essential that every effort be made to shield this legal act from politicalization by one’s opponents. The first step is to, of course, only order imposition, of an aerial blockade in circumstances where it is absolutely necessary to do so. In other words, potential political costs must be weighed carefully when considering this course of action. To make significant gains vis-a-vis the ongoing conflict, but lose the support of the world community would be a Pryrrhic victory indeed. In executing the blockade, it is also essential that notice be given any even remotely affected parties in a comprehensive and unambiguous manner. Such notice should include not only intentions concerning force, but also the rationale for the action. Notice of intentions has the effect of shifting the onus of responsibility for creating a situation in which force might be used to the breaching party. Taking this step will avoid providing fodder for enemy propaganda efforts. At the same time, one’s opponents must not be given the opportunity to characterize the operation on their own terms. Thus, articulating the rationale underlying the blockade is critical. The goal of both these suggestions is to avoid a situation in which the enemy or an unfriendly neutral can plausibly, though inaccurately, claim that a shootdown was wrongful because of a lack of warning (either general or specific), or that even though the downed aircraft knew there was a blockade, it was breaching it because the blockade itself was unjust. In other words, the ultimate objective is for the world community to view any shootdown on your terms. With regard to planning, probably the best approach is the stepped one described above. Whether it is possible will depend on the specific circumstances of the conflict. It may be that a blockade of all aircraft is necessary from the outset because of critical support the enemy’s military operations are receiving through aerial lines of communication. However, such situations are likely to be the exception, not the rule. Generally, an aerial blockade will be but one component of a larger strategy designed to deprive the enemy of resources so as to slowly

230

Even if Article 3 bis was read not as declaratory of international law, but rather as newly prescriptive, it would not have determinative bearing on the issue because it would be limited to the context in which it arose––peacetime actions. It is only by characterizing it as declarative, in light of the absence of comparable provisions in other treaties, that it can be deemed to have bearing by analogy beyond the specific situations envisaged in the Chicago Convention. Indeed, even with regard to ships flying the same flag, enforcement must be consistent across the board. Obviously, though, the principle is designed primarily to avoid the dangers of discrimination addressed above, since there would seldom be a reason to selectively enforce against ships of the same nation.

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weaken his military capability and will to continue the fight. Therefore, circumstances permitting, planners may wish to create levels of blockade, ranging from military aircraft to civil transport to civil passenger aircraft, that are imposed sequentially and systematically over time. The goal of this hierarchical model is to generate credibility at the lowest possible level for a threat to use force as an enforcement mechanism. Additionally, this technique has the benefit of extending the notification period for neutral or enemy aircraft of a particularly sensitive nature. The longer this period lasts, the less believable will be arguments that the blockading state was acting precipitously. Furthermore, the blockading state does not have to delay imposing some sort of blockade to take advantage of the benefits derived from the extended notification periods. Instead, that state can demonstrate its resolve by declaring a blockade as to certain categories of aircraft, yet defuse political attacks by enhancing notice and appearing to act in a measured fashion. It must be remembered that this course of action is recommended for political reasons, not legal ones. Though it is true that such a stepped operation will help counter particular legal arguments that may be advanced by states negatively affected by the blockade, it is by no means a legal requirement. Instead, it is merely offered for consideration as one possible tactic in imposing an aerial blockade.

6.3 Aerial Blockades in Practice In the previous sections, aerial blockades have been evaluated from a theoretical perspective. By reviewing historical practices, it was determined that extension by analogy of maritime blockade principles to the aerial regime was appropriate. That conclusion reached, the general norms governing maritime blockades were evaluated to ascertain the extent to which application to aerial blockades required revision. In this section, the goal is to identify practical factors that may affect the execution of an aerial blockade in compliance with the principles posited above. At the outset, it must be understood that doing so is an artificial exercise. Whether an operation can be planned that meets the requirements set forth is in great part dependent on the context in which it is to be carried out. Certain of the factors which may be relevant have been discussed earlier. For example, the interplay of the availability of recovery airfields for breaching aircraft and the principle of force majeure will obviously bear on the extent to which a blockade can be made effective. Similarly, the availability of friendly airfields from which ground based aircraft can operate will ease planning significantly. As these examples illustrate, geography is one critical influence on the type of operation planned. Also decisive will be the availability of friendly assets. Many states, for instance, simply do not have the forces to establish an effective blockade. Even those that do may find that the more immediate demands of other ongoing

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operations create such a drain on assets and resources that a contemporaneously executed aerial blockade cannot be feasibly mounted. Factors such as the extent of the blockade, its planned duration, the cooperation of allied forces, the availability of ground based interceptors, the frequency of attempts to breach, the coverage of identification modalities, and the effectiveness of logistical support will all impact on the nature and size of the force that will be required to enforce an aerial blockade. The point is that it is impossible to draw any universal conclusions about the viability of these blockades. Each must be evaluated contextually. Despite this caveat, it is possible to offer comment on certain factors which are likely to be common to most aerial blockade operations. For example, methods of declaration and notice will be relatively standard across all blockades. Similarly, it is possible to suggest rules of engagement for most intercepts. The question, therefore, is not whether a particular blockade can be performed, but instead whether there are practical/technical factors which will usually preclude compliance with blockade norms, or which generally facilitate implementation of valid blockades. Assuming blockades are ‘‘doable’’ in a broad sense, unique operational factors can then be considered by the mission planner on a case by case basis. To provide structure to the analysis which follows, the five categories employed in section two will again be used. Readers are cautioned, however, that practices and tactics discussed are neither exclusive, nor, mandatory. In no way are they meant to suggest what the minimum standards for compliance should be. Instead, they are merely presented to illustrate how blockade norms might be complied with in an effort to identify test aerial blockades against practical factors. Hopefully, they will serve the mission planner as a useful departure point for developing his own creative methodologies. The first category, universal application, presents few practical problems since it is primarily an issue of intent. So long as the policy of the blockading force is not to draw distinctions between aircraft of different states, allegations of selective enforcement are unlikely to withstand scrutiny. In developing operational plans, the possibility of limiting the blockade to either ingress or egress should, as discussed above, be considered. Additionally, selective identification efforts are acceptable under international law assuming they do not render enforcement efforts ineffective and are targeted against the states most likely to breach. Finally, a stepped approach to enforcement based on the nature of the aircraft excluded comports with the principle of universal application and should be considered both in terms of conserving valuable resources needed to enforce a later more comprehensive blockade and as a tactic which will lend credibility to the operation. Where the problems arise with regard to universal application are in the exceptions to the principle. Humanitarian relief missions are difficult to monitor because the nature of the cargo carried cannot be determined while the aircraft is airborne. If only certain international organizations were engaged in carrying humanitarian supplies, enforcement would be relatively easy using, for example, UN or Red Cross fin flashes for identification. However, the difficulty lies in the fact that when states are providing relief, those involved may be the very ones most likely to attempt breach as to non-humanitarian supplies.

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Obviously, the key to precluding subterfuge is to establish some form of inspection which occurs before the aircraft is airborne. The pitfalls associated with such a system were discussed earlier vis-a-vis the doctrine of continuous voyage. However, in the case of humanitarian relief, the problems are less severe as fewer flights would be involved. Furthermore, because there is little incentive to attempt to transport actual humanitarian supplies into the blockaded state without complying with clearance procedures, most states can be expected to follow established procedures closely. Certain procedures could be implemented to ensure only humanitarian missions are permitted through. A variant of the World War II navicert or the Cuban Missile Crisis clearcert could be devised to authorize passage.231 In order to make the system workable, several international airports could be selected as final leg departure points. All humanitarian flights would have to stop at these locations to obtain clearance from officials of the blockading power. By limiting the number of airfields serving this purpose, the administrative burden would be reduced significantly, thus minimizing the likelihood that error would lead to tragic results once the aircraft reaches the blockaded area. At the same time, specific routes at specified flight levels into the blockade zone should be established for humanitarian missions. To facilitate monitoring, the number of such routes should be kept to an absolute minimum. Well in advance of departure of the aircraft, identification information would be passed to the blockading force. This information would include at a minimum the nationality and type of aircraft, time of arrival at the entry point, and IFF squawk. Additionally, aircraft should be instructed to contact the blockading force on set frequencies at a designated location prior to the entry point. Assuming sufficient monitoring assets such as AWACSs, E-2s, surface vessels, or ground based radar were in place, intermediary checkpoints could be established along the route from the departure field to the entry point which aircraft would have to reach within predetermined windows. Contact with the monitoring assets could also be required at each checkpoint. Since identification is critical, no night flights should be permitted and, to the extent possible given humanitarian concerns, flights should generally only be made in VFR conditions. Of course, additional procedures could be developed to further enhance verifiability. Neutrals would have little reason to complain about these procedures because they actually serve to limit the likelihood of force being used against them. Less

231 See NWP 9, supra note 4, sec. 7.4.2, regarding the use of aircerts in contraband operations. During the Cuban Missile Crisis three clearance systems were operative. Vessels departing American ports could obtain a clearcert from US customs authorities if they were destined for Cuba or would be passing near the island. Those departing from foreign ports which were only going to transit the affected zone could file a ‘‘notice of transit’’ with the American consulate at the last port of departure. If the vessel was bound for Cuba, and was not transporting offensive weapons or other prohibited material, the American consulate would issue a clearcert. ‘‘US Acts to Avoid Delays for Shipping Transiting Waters in Vicinity of Cuba’’ (Press Release # 644), 47 Dep’t. St. Bull. 747 (1962).

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stringent procedures would make it difficult for the blockading force to distinguish humanitarian flights from breach attempts. Thus, valid humanitarian missions might be turned away simply because status could not be ascertained. By contrast, though these procedures do impose a burden on those conveying humanitarian supplies, the ultimate purpose of ensuring supplies get through is fostered. Because aircraft in distress may not be identifiable as such visually, a much more problematic exception is force majeure. Further, standard distress signals such as squawking 7700 on IFF or the MAYDAY call are easily feigned. There simply is no way to verify the validity of an in-flight emergency. Of course, if there are non-blockaded airfields, friendly or neutral, in the vicinity, aircraft claiming distress can be diverted to those. However, assuming the only recovery capable runways lie in the blockaded territory, the sole permissible course of action would be to let the aircraft pass, and rely on intelligence assets to verify the emergency once the aircraft lands.232 Subsequent political or economic sanctions could then be imposed on the guilty state. By contrast to the principal of universal application, that of declaration and notice is actually becoming easier to comply with. Declaration is facilitated by modern modes of communication. Using advanced communications technology, the need for declaration of a blockade can be communicated rapidly up channel to decision makers, together with any information necessary to make the determination of whether to go ahead and order its implementation. At the same time, the decision to implement can be disseminated to mission planners and operators in a matter of seconds. This may be particularly important in the case of aerial blockades due to limited reaction time. Notification has also become easier than in the past. In the first place, the proliferation of international and regional organizations provides fora in which notification can be passed to a large number of states simultaneously. The availability of near instantaneous communications between the representatives of the various states in these organizations and their home governments speeds the process greatly. Similarly, the ease with which the government of the state declaring the blockade can communicate either directly or through its diplomatic personnel with potentially affected states enhances the certainty that notification requirements can be complied with. Of course, using modern communications (and assuming the will to do so) the affected government can disseminate information regarding the blockade to its air fleet very quickly. Furthermore, systems are already in place to provide information directly to operators. For example, the American State Department issues Advisories when US

232 A critical force majeure issue is what to do if an interceptor directs a ‘‘captured’’ breaching aircraft to a particular recovery airfield, but the aircraft replies that it has neither sufficient fuel to reach that destination, nor sufficient fuel to turn back and fly to an airfield outside enemy territory. Professor Tucker, relying on the 1923 Hague Rules of Aerial Warfare requirement that the diversion field be suitable and reasonably accessible (Article 50), has suggested that the aircraft should be allowed to continue on. Tucker 1955, at 355. This would appear to be the best approach politically and legally.

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military activities pose a danger to others.233 Additionally, notice of the blockade would be passed though the international Notice to Airmen (NOTAMs) system and printed in aeronautical information publications (AlPs). Since a review of NOTAMs is required for international flights, it would be rare that the pilot of any aircraft entering a blockaded zone would be unaware of its existence.234 Thus, even if there is a breakdown in the diplomatic notification system, it would be unlikely that a pilot could claim ignorance of an aerial blockade at the time of breach. 233 The Advisory for current (November 1990) operations in the Persian Gulf and Red Sea is an excellent example of the specificity with which such notifications should be made:

The United States has requested that the following information be disseminated. US military forces are operating north of the 20 degree north latitude in the area of the Arabian Sea, Gulf of Oman, Strait of Hormuz, and the gulf west of the Strait of Hormuz. US forces are also operating north of 22 degrees latitude in the area of the Red Sea. The timely and accurate identification of aircraft in this area is essential to preclude the inadvertent use of military force against civilian aircraft… To better enable US military forces to identify aircraft, all aircraft flying within or entering this area should maintain a continuous listening watch on one or both of the international emergency frequencies (VHF 121.5 and/or UHF 243.0 MHz). Aircraft equipped with a civil weather avoidance radar and/or an operational civil type radar transponder should operate both continuously when transiting these areas. Unidentified aircraft and those whose intentions are unclear to US military forces will be contacted using the English language on VHF 121.5 and/or UHF 243.0 MHz and requested to identify themselves and to state their intentions. Such contacts may originate from military surface and/or airborne units. US radio communications will use standard phraseology and will specify the aircraft’s flight information, as available, to include: heading, flight level or altitude, SSR/IFF squawk, geographical coordinates, and ground speed. Aircraft receiving advisory calls should acknowledge receipt and understanding of the warnings on the frequency received, and provide the information requested. …[F]ailure to respond to radio transmissions or to respond to or comply with the advice given may place the aircraft at risk. Aircraft transiting the area mentioned may minimize their exposure to the advisory procedure by maintaining an altitude above FL 250, by avoiding off-airways routing, by executing all climbs and descents within national airspace and by avoiding abrupt and unusual changes in heading and/or altitude which may be constructed as inconsistent with normal aircraft flight patterns. Department of State Advisory, supra note 16. 234 An example of a NOTAM for an area in which there is a risk of the use of force is USCINCCENT MacDilI AFB FL Message, supra note 16.

US Naval Forces operating in international waters within the Persian Gulf, Strait of Hormuz, and the Gulf of Oman are taking additional defensive precautions against terrorist threats. Aircraft at altitudes less than 2000 feet AGL which are not cleared for approach/departure to or from a regional airport are requested to avoid approaching closer than 5 NM to US Naval Forces. It is also requested that aircraft approaching within 5 NM establish and maintain radio contact with US Naval Forces on 121.5 MHz VHF or 243.0 MHz UHF. Aircraft which approach within 5 NM at altitudes less than 2000 feet AGL whose intentions are unclear to US Naval Forces may be held at risk by US defensive measures. NOTAMs are issued IAW AR 95-10/OPNAVINST 3721.20/AFR 55-16.

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In the improbable event that the pilot of an aircraft was actually unaware of the blockade at takeoff, as he approached the blockaded zone blockading forces certainly have the means to provide notification. All aircraft flying international routes should be monitoring one of the international guard frequencies, either 243.0 MHz UHF or 121.5 MHz UHF.235 The breaching aircraft could be contacted by surface, air, or ground forces and instructed to switch to a discrete frequency for further communications. Even if the aircraft was not monitoring guard, an interceptor could pass the frequency to switch to using standard hand signals. Assuming all of the aforementioned notification efforts were unsuccessful, the existence of standardized international intercept procedures facilitates turning the aircraft away from the zone. Annex 2 to the Convention on International Civil Aviation sets forth explicit procedures for the pilot of an intercepted aircraft.236 The first and most important rule is that the pilot must follow all instructions of the interceptor.237 Compliance with this requirement will mean that the situation should never escalate to the point where force might be used. Thus, the issue of notice would not arise, for compliance precludes the necessity of using force. Further procedures are designed to establish communication with the interceptor and to provide the pilot of the intercepted aircraft with rules of thumb to follow if he receives conflicting instructions. Upon intercept, the pilot should immediately be contacting the appropriate air traffic services unit.238 This unit would, of course, be aware of the blockade and could pass the information at that time. The pilot is also required to attempt contacting the intercepting force on the guard frequencies, first using VHF, and, if that effort is unsuccessful, then UHF.239 Again, if the aircraft was improperly not monitoring guard, the use of guard at this point will allow for notification. The breaching pilot is also required to switch his transponder to Code 7700.240 Since this is the international distress signal, if the blockading force has not been, able to establish contact on guard, then receipt of a 7700 squawk should put it on notice that the intercepted aircraft may be in a communications-out situation. As a result, efforts to visually communicate with the aircraft should be redoubled, and interceptors should be particularly hesitant to use force because they may be dealing with an aircraft that is not attempting breach, but rather is unaware of the blockade operation. Finally, when there is a difference between radio and visual 235 See, e.g., Convention on International Civil Aviation (cited supra note 179), annex 2 (Rules of the Air), sec. 3.8.1d, reprinted in 22 I.L.M. 1154 (1983). See also frequencies used in State Department Advisory, supra note 233, and NOTAM, supra note 234. 236 Annex 2, supra note 235, sec. 3.8. 237 Id. sec. 3.8.1a. 238 Id. sec. 3.8.1b. 239 Id. sec. 3.8.1c. If radio contact is established, but there are language difficulties, a series of short common phrases are provided in the Annex––wilco, cannot, repeat, am lost, mayday, land, descend, follow, you land, and proceed. Id. sec. 3.8.2. 240 Id. sec. 3.8.Id.

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instructions from the interceptor, visual instructions should be complied with while clarification is sought.241 Similarly, in the event of conflicting instructions from the intercepting aircraft and elsewhere, the directions of the interceptor must always be followed.242 If the intercepted aircraft does not respond to radio calls, standardized visual signals have been established for communicating.243 Though there is no provision for conveying the message that the aircraft has entered or is about to enter a blockaded zone, the signals do allow for instructing the aircraft as to the measures it must take to avoid the use of force. Thus, as noted above, if the intercepted aircraft complies with the instructions of the interceptor as it is required to do in the Convention, the issue of notice with regard to the use of force would not come into play. Yet another factor facilitating notice is the division of the world into various zones by the ICAO for the purposes of assisting and controlling aircraft. There are currently eight designated ICAO regions in the world. Each is further subdivided into flight information regions (FIR) and controlled airspace. Within each FIR, which may consist of both national and international airspace, flight information and alerting services are provided as a method of enhancing the safety of aircraft. Though air traffic control is not available in a FIR, it is in controlled airspace.244 Both systems provide an excellent means for notifying aircraft of the existence of a blockade. Since FIRs cover large areas of airspace, most blockades which would be established would fall within one. Therefore, the FIR alerting system would act to supplement notification efforts of the blockading force. Controlled airspace encompasses much smaller regions and, thus, an aircraft about to enter a blockade zone may or may not be in contact with an air traffic control service. However, in many circumstances positive air traffic control will have been established and can be used to notify aircraft approaching the zone. This is most

241

Id. sec. 3.8.3. Id. sec. 3.8.4. 243 Convention on International Civil Aviation (cited supra note 179), app. A, reprinted in 22 I.L.M. 1176 (1983). There are three signals that can be made by the intercepting aircraft. In order to indicate an intercept, the intercepting aircraft rocks its wings (flashes navigational lights at night) and makes a slow level turn to the desired heading. The intercepted aircraft acknowledges by rocking its own wings (or flashing navigation lights at night). The proceed instruction is made by an abrupt breakaway maneuver and acknowledged by rocking wings. To direct a landing, the interceptor circles the field, lowers its landing gear, and overflies the runway in the direction of the desired landing. Acknowledgment is by lowering the landing gear and landing. Id. para 2.1. The intercepted aircraft also has use of three standard signals. To indicate that the designated airfield is insufficient, the landing gear is raised and the aircraft continues circling the airfield (flashing landing lights at night). A cannot comply message is conveyed by switching all lights on and off in a manner that is distinct from regular flashing. Finally, in distress is signaled by an irregular flashing of all available lights. Id. para 2.2. 244 Dep’t. of Defense, Flight Information Publication: General Planning, sec. 6-6 (Aug. 23, 1990 ed). See also NWP. 9, supra note 4, sec. 2.5.2.2, concerning FIRs. 242

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likely to be the case when aircraft are entering the blockaded area while flying parallel to a coastline. Finally, the blockading force could establish a zone beyond the line of blockade to expedite both identification of incoming aircraft and notification. A type of identification zone already in widespread use is the air defense identification zone (ADIZ). Established by many nations (including the United States) in areas adjacent to their territorial airspace, an aircraft entering an ADIZ may be required to identify itself as a condition of entry.245 As a legal matter there is no particular significance to the establishment of the zone. It is simply an area in which aircraft are requested to identify themselves. Failure to do so results in no sanction other than denial of entry into territorial airspace. Another variant is a warning zone. Used in the Persian Gulf during Operation Desert Shield and past Middle East deployments,246 aircraft are not excluded from the designated area, but are merely warned that failure to identify themselves properly and comply with any defensive instructions of the operational force may place them at risk. Warning zones, like ADIZs, have no independent legal basis and create no legal right to enforcement. Enforcement is, instead, based on the right of self-defense. As with ADIZs and warning zones, the creation of an identification/notification zone beyond the line of blockade would be legally acceptable because no enforcement actions would be taken until the aircraft reached the blockade itself. Establishment of such a zone was discussed above when considering the issue of selective identification. Viability is, of course, dependent on the availability of assets. However, assuming the assets to implement an ‘‘early warning’’ zone could be assembled, the procedure suggested would have the benefit of adding precious time to the period between identification of the potentially intruding aircraft and the moment when it reaches the line of blockade. During this period, efforts to notify the aircraft of the existence of a blockade could be made. An early warning zone would enhance effectiveness by allowing the blockading force a longer reaction time. It would also foster credibility by instilling confidence in the blockading force that an aircraft against which force was about to be used had in fact received actual notice, been warned away, and nevertheless persisted. In other words, the blockading state would have less fear of an adverse political reaction because there would be no grounds for alleging either that the downed aircraft was unaware of the blockade or that it was given insufficient opportunity to comply with instructions. By making the use of force thinkable, it becomes less likely that force will have to be used at all.

245 NWP 9, supra note 4, sec. 2.5.2.3. Though some states require all aircraft entering the zone to identify themselves regardless of an intent to penetrate national airspace, the United States does not recognize this right. Id. Procedures to be followed in US ADlZs are set forth in United States Control of Air Traffic Regulations, 14 C.F.R. part 99 (1985). 246 See, e.g., DMAHTC message, supra note 15; USCINCCENT message, supra note 16; State Department Advisory, supra note 16.

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With regard to the third category of blockade norms, access to neutral areas, two practical problems are posed. The first, application of the continuous voyage doctrine, was discussed earlier, and it was concluded that in practice it would be extremely difficult to execute an operation designed to stop transshipment of goods into a blockaded state. Therefore, it was asserted that efforts to arrest the flow would have to rely on a methodology other than blockade. The second dilemma is how to handle aircraft which need to transit a blockaded area. There are two variants to this problem. The first involves aircraft whose routing takes them over enemy territory in order to reach a neutral country. In practice this problem is illusory, for during hostilities the airspace over enemy territory would be a war zone in which military operations were ongoing. Obviously, the flight of aerial transports through such an area would hinder operations, a hindrance which justifies exclusion independently of a blockade.247 However, excluded aircraft would then have to be rerouted. Therein lies the difficulty, for the most feasible route to neutral international airspace adjacent to a blockade zone may very well lie through it. This is related to the second variant of the problem, i.e., the possible need of aircraft not originally destined for the blockaded state to fly through the zone to reach neutral territory. Compounding the difficulty in an aerial blockade is the fact that the zone of blockade will have to extend well beyond the coastline of the enemy state. In part this is necessary to place the aircraft enforcing the blockade outside the threat envelope of enemy weaponry such as surface to air missiles. It is also mandated by the speed of aircraft. Given this speed, there is little time available between the moment of intercept and the enforcement decision point, especially since the entire enforcement sequence will have to be accomplished prior to the interceptor getting so close to the coast that it will itself be endangered. The obvious remedy is to expand the blockade seaward. However, as the blockade is extended, the need to establish a method for providing access to neutral states will grow. Depending on the volume of traffic, an aircert procedure, such as that described for humanitarian relief, could be implemented. Yet, if a significant amount of traffic will be transiting the area, monitoring it will become a problem of nightmarish proportions.248 Indeed, the blockade is likely to soon begin resembling a sieve. Therefore, some system must be devised to permit adequate monitoring. Probably the best approach would be to establish specified routes through the blockade to neutral territory.249 Depending on the geographical configuration of

247

See, e.g., NWP 9, supra note 4, sec. 7.8. One argument might be that the volume of traffic seeking to pass through the area will be quite low since insurance costs for aircraft operating near an area of hostilities can be expected to skyrocket. Even in the case of state owned aircraft, the mere presence of hostilities may be a disincentive to operating in the area. If factors such as these kept the number of aircraft entering the area low, an aircert program might prove viable. 249 Such routes would not be dissimilar to Air Traffic Service Routes currently used by civil, and often military, aviation. See General Planning, supra note 244, sec. 6-14. That a system of corridors is workable is illustrated by those until recently employed for transit to and from Berlin. 248

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the area, two would probably be sufficient, one to either side of the blockade. Aircraft would enter the route at designated locations and be required to fly at predetermined altitudes. Additionally, all aircraft would be obliged to contact the blockading force prior to entry and to maintain contact throughout the flight. Such measures would ease the problem of identifying aircraft which initially enter the corridor in the correct manner, but subsequently break out of it. Obviously, enforcement will be problematic. Therefore, to enhance reaction time the corridor should be both placed as far from the blockaded coast as feasible and kept as short as possible. Reaction time will also influence the placement of aircraft (or carriers) along the route. Further, it will determine whether aircraft used to enforce compliance can be sitting alert or whether they will have to be airborne. Of course, a requirement to keep aircraft aloft would severely tax the resources of the blockading force. Ultimately, if the operation proves too unwieldy, planners may have to consider collapsing the blockade landward to permit aircraft bound for neutral territory to pass beyond it. As for the principle of effectiveness, the dual keys to success are the abilities to identify and to respond. Both are absolutely dependent on the assets available to the blockading force. The assets needed will in turn depend on a number of factors. Size of the area to be blockaded will, of course, be a major determinant.250 At the same time, the likelihood of breach attempts will affect the composition of the blockading force, as well as the tactics to be employed. If the blockaded state is isolated politically, few nations are likely to countenance efforts by their aircraft to breach. On the other hand, political support for the blockaded nation will surely translate into a higher number of attempts. Geography may also play a role. For example, the depth of the blockade may be limited if the blockaded coast faces an opposing neutral coast, instead of a vast expanse of ocean. The narrower the blockade, the more likely aircraft are to attempt to run it. Finally, enemy assets will likewise drive the nature of the force needed to enforce the blockade. The greater the enemy capabilities, the more friendly assets which could have been devoted to enforcement will have to be used for defensive purposes. Of course, these are but a few of the considerations mission planners will have to cope with. However, assuming the availability of whatever assets the mission planner determines are needed, effectiveness should not be a problem. In a best case scenario, ground, sea, air, and space based assets capable of identifying and/or contacting ingressing aircraft will be deployed well forward of the blockading force.251 Aircraft like the E-2 and AWACS will be especially valuable because the

250

For example, AWACSs and E-2s can probably effectively monitor an area in a 200 NM radius around the aircraft. Thus, multiple missions will have to be ongoing simultaneously during larger operations. Similarly, given range constraints of carrier based interceptors, aircraft sitting alert would not have an effective area of operations extending much beyond a 300 NM radius of the carrier. 251 Supporting intelligence will also be critical for it will allow the blockading force to focus it efforts where they are likely to do the most good.

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effectiveness of surface and ground radar can be significantly by tactics such as low level flight and terrain masking. In terms of ability to respond, a blockade would optimally involve the use of ground based aircraft since they can stay aloft longer than carrier based aircraft. In many cases, however, ground based aircraft will be unavailable, often due to range constraints. Neutrals may be unwilling to endanger their neutrality by permitting aircraft at installations located in their countries to be used. Therefore, unless there are bases in nearby allied or occupied territory, carriers will be the linchpin of any aerial blockade. Regardless of the source of the interceptors used, the best approach is to provide sufficient early warning to allow them to be launched from an alert status. If they must be utilized in a continuous CAP operation, the number of aircraft and crews needed will expand exponentially. Crews may begin losing their edge as fatigue sets in, crew rest scheduling will become problematic, and maintenance and support functions will be badly taxed. Additionally, since the aircraft will have already expended much of their fuel in maintaining the CAP, there will be less time available between intercept and the use of force decision point. Chase capabilities will be similarly limited. Both of these latter factors increase the chance that force will be employed more quickly. Furthermore, in multiple carrier operations, the carriers will have to be stationed closer together because the range of the interceptors will be negatively affected by the requirement of remaining onstation for the period of the watch. To alleviate these problems, refueling operations would have to be conducted on a nearly continuous basis. Of course, conducting such operations poses its own problems. Ultimately, though, there is no reason to doubt the ability of a state possessing adequate assets to mount an effective aerial blockade. Identification of breaching aircraft is easily accomplished using modern technology and interceptors can readily be vectored to an intercept. Thus, the primary problem will be one of whether sufficient forces are available to mount an effective blockade. The final category for analysis is breach. A number of relevant issues have been previously discussed. For example, the Anglo-American approach to pursuit was characterized as the more reasonable one when considered in terms of aerial blockade. Whether the zones of engagement proposal offered earlier as a pursuit methodology is viable depends, as with effectiveness, primarily on the availability of assets. It was also determined that an inability to effect capture due to the absence of recovery fields was not legally fatal. Intercept methodology is the remaining breach issue. When devising workable intercept tactics, the key is controlled escalation. In other words, by slowly escalating the forcefulness of the intercept, and by giving the intercepted aircraft repeated opportunities to comply with any instructions, the onus of responsibility for whatever results shifts to the breaching party in a definitive manner. The question is what to do if an aircraft fails to comply with instructions. There are a number of tactics that could be employed beyond radio and visual communication to convey the seriousness of the situation and the need to follow

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directions. Whatever system is developed, the crucial factor is an ability to escalate both the display of intent and the danger to the breaching aircraft. One possible intercept procedure designed to dissuade breaching aircraft from continuing would involve the following. First the interceptor would ‘‘zoom’’ past the breaching aircraft, hitting afterburners as it passed. Assuming that tactic failed to dissuade the breaching aircraft, the next step would involve flying close enough to it to cause the pilot concern. A variant of this would be either dashing at the breaching aircraft or slowly turning into it. If the breacher continued on, the interceptor could create jet wash across which the intruding aircraft would have to fly. Doing so will raise the stakes significantly since an inexperienced pilot may have difficulty handling his aircraft in jet wash. Additionally, if this tactic is used at low level the breaching pilot may have trouble recovering the aircraft in time if he loses control of it. There is also always the danger that jet wash will result in engine failure. Should the breaching aircraft ignore these measures, it would now be appropriate to initiate a response involving weapons. The first step would be to pull up adjacent to the aircraft and fire tracers parallel to its flight. Next, tracers could be fired across the bow of the breaching aircraft. If these steps proved unsuccessful, it would now be appropriate to use force against the aircraft itself. It should be warned that it is about to be fired on and, if no response is received, shot at. Since the use of minimum force is always recommended, and because the interceptor is in close proximity to the breaching aircraft, guns should generally be used prior to air-to-air missiles. In all likelihood, however, the result will probably be the samedowning the aircraft.252 Despite this ominous concluding step, it should be the rare case in which the use of force reaches this point. Most aircraft will be deterred at lower levels in the escalatory scale of response. Further, even if not initially deterred, the credibility resulting from a single shootdown will render future intercepts very effective.

6.4 Conclusions This chapter has reviewed the historical practices, legal norms, and practical factors related to the mounting of an aerial blockade. Based on the analysis, it was determined that such blockades are a viable option for consideration by policy makers intent on successfully prosecuting military operations. In particular, aerial blockades were characterized as an appropriate adjunct to classic naval blockades. Ultimately, the determination of whether to use an aerial blockade is both a military and political one. In military terms, the issue is whether dedication of the resources needed to maintain the blockade with the requisite degree of

252

As should be apparent, the development of rules of engagement for such intercepts is critical. For a discussion of ROEs, see O’Connell 1975, pp. 169–180, and Hayes 1989.

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effectiveness is merited given any countervailing demands of other ongoing operations. To say that an aerial blockade can be executed is not to imply that it is a militarily wise course of action. Politically, a similar cost-benefit analysis is required. In particular, the costs of being forced into a situation where an aircraft may have to be downed lest credibility be destroyed must be considered carefully: one method of minimizing political costs is to shift the onus for use of force to the breaching party. Several techniques for doing so have been suggested. In the final analysis, though, a state’s own hesitancy to use force against possibly neutral and unarmed aircraft may prove the most significant obstacle. Many may view such a use of force as particularly distasteful. Indeed, since loss of life will almost certainly result, it is. However, this attitude reflects a very shortsighted understanding of how military operations can be used to minimize violence. With regard to actual intercepts, a political commitment to escalate through the various responses to the point of shootdown will actually enhance credibility and foster the ultimate purpose of diminishing the overall likelihood of resort to forceful measures. More importantly, an aerial blockade, viewed in the broader context of the general war effort, is much lower on the scale of violence than other methods, such as bombardment, which can be employed against an enemy’s economic and logistical base. Certainly, even those who would argue against aerial blockades on the basis of the degree of force which may be employed would concur that whenever possible a tactic which achieves comparable results, but causes less violence and destruction, is preferable. Opponents of aerial blockades may also point to the belligerent/neutral balancing test to contend that aerial blockades are impermissible. This contention has been considered and rejected throughout the chapter. Additionally, it may run counter to the very values that many of its proponents hold dear. To argue that belligerents should be deprived of a tactic which has the potential for lessening the loss of life in the long run because neutrals may be inconvenienced by it is particularly unconvincing. Finally, in the twentieth century it may be appropriate to reconsider the balancing test used in assessing blockades. In a world community ostensibly committed to the minimization of suffering, should blockades be considered primarily on the basis of belligerent and neutral rights? Or should blockades instead be judged according to their potential for alleviating suffering over the long term? In other words, should the humanity principle be the sole determinant of whether a blockade is legal? For example, is it an acceptable result to discard the idea of employing a blockade because it may interfere with access to a neutral area or may not be quite effective enough when the alternative is prolongation of a bloody military conflict? Obviously, a shift to a ‘‘suffering with/suffering without’’ balancing test is not without its problems. Most importantly, such a test is extremely subjective and may, therefore, fall victim to manipulation. Yet, this is true for much of international law, particularly the law of armed conflict. Further, this is a risk that the world community probably should be willing to take.

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It is from this perspective that the best argument for aerial blockades can be made. Though in the abstract aerial blockades can be executed to comply with legal norms, practical limitations such as the availability of assets may make compliance impossible. However, if legality was determined by comparing the relative degree of suffering with and without a blockade, blockades might be justified nevertheless. Thus viewed, aerial blockades may present an important tool for the maintenance of a less violent world. It is certainly a tool which merits increasing attention.

Abbreviations ADIZ

Air defense identification zone

AIP

Aeronautical information publication

AWACS

Airborne warning and control system

CAP

Combat air patrol

ELINT

Electronic intelligence

FIR

Flight information region

ICAO

International civil aviation organization

IFF

Identify friend or foe

IFALPA

International federation of airline pilots association

NOTAM

Notice to airmen

NOTMAR

Notices to mariners

SIGINT

Signals intelligence

USSR

Union of Soviet Socialist Republics

VFR

Visual flight rules

References Akehurst M (1974–1975) Custom as a source of international law. Brit YB Int L 1 Alford N (1967) Modern economic warfare (56 Naval War College international law studies) Beeston (1990) Baghdad courts world sympathy on UN move. The Times, September 26, available on NEXIS Bowles T (1900) The declaration of Paris, 1856 Briggs H (1983) The doctrine of continuous voyage (1926); Jones, The international law of maritime blockade-a measure of naval economic interdiction Bush G (1972) UN notified of new measures against North Vietnam. 66 Dep’t St Bull 750

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Charles G (ed) (1913) 3 Treaties, conventions, international acts. Protocols and agreements between the United States and other powers 268 Cheng (1985) The destruction of KAL Flight KE007, and Article 3 bits of the Chicago convention. In: Storm van’s Gravesande JWE, van der Veen Vonk A (eds) Airworthy: Liber Amicorum honouring Professor Dr IH Ph Dierderiks-Verschoor 49 Christol C, Davis C (1963) Maritime quarantine: the naval interdiction of offensive weapons and associated material to Cuba 1962. 57 Am 1 Int L 525 Clark (1973) Recent evolutionary trends concerning naval interdiction of seaborne commerce as a viable sanctioning device. 27 JAG J 160 Cohen A (1911) The declaration of London 6–9 Colombos C (1967) The international law of the sea 729 (6th edn) Deak F (ed) (1977) 17 American international law cases 381 Deak F (ed) (1978) 20 American international law cases 466 Donahue (1989) Attacks on foreign civil aircraft trespassing in national airspace. 30 AFLR 49 Fenrick (1986) The exclusion zone device in the law of naval warfare. Can YE Int L Fitzgerald (1984) The use of force against civil aircraft: the aftermath of the KAL 007 incident. Can YB Int L 291 Garner (1915) Some questions of international law in the European war (blockades). 9 Am J Int L 818 Greenspan (1959) The modern law of land warfare 650 Grotius H. (1853) De Jure Belli et Pacis. (trans: Whewell W) 3 Grotius on war and peace 6 Hall J (1921) The law of naval warfare 188 Hayes B (1989) Naval rules of engagement: management tools for crisis (Rand note N-2963-CC), July 1989 Hogan A (1908) Pacific blockade Hughes (1980) Aerial intrusions by civil airliners and the use of force. 45 J Air L Commerce 595 Hyde C. (1945) International law as chiefly interpreted and applied by the United States, 1917– 1919 (2nd edn) Institute of international law (1882) Principes Appliques par la Cour des Etats-Unis dans l’affaire du Springbok, 14 Revue de Droit International et de Legislation Comparee Jahn (1984) Applying international law to the downing of Korean Air Lines Flight 007 on September 1, 1983. Germ YB Int L 444 Jenkins (1985) The legality of the Iraqi exclusion zone and Iranian reprisals. 8 BC Int Comp L Rev 517 Kissinger Presidential Assistant H (1972) Considerations leading to new decisions on Vietnam. 66 Dep’t St Bull 752 Laird Secretary of Defense M (1972) News Conference, May 10, 1972, 66 Dep’t St Bull 761 Leckow (1988) The Iran–Iraq conflict in the Gulf; the law of war zones 37 Int Comp LQ 629 Lillich R, Moore J (eds) (1980) 62 Naval War College international law studies. Readings in international law from the Naval War College Review 1947–1977 Lissitzyn (1953) Am J Int L 47:559–574 Lovitt (1944) The AlIied Blockade. 11 Dep’t St Bull Majid (1986) Treaty amendment inspired by Korean plane tragedy: custom clarified or confused. Germ YB Int L 190 Mallison (1962) Limited naval blockade or quarantine-interdiction: national and collective defense claims valid under international law. Gea Wash L Rev 31:335 Mallison and Mallison (1976) A survey of the international law of naval blockade, US Naval Institute Proceeding, Febraury 1976 McCarthy (1984) Limitations on the right to use force against civil aerial intruders: the destruction of KAL flight 007 in community perspective. 6 NYL Sch J Int Comp L p 177, 197 McDougal M, Feliciano F (1961) Law and minimum world public order 492 McNulty (1980) Blockade: evolution and evaluation. In: Lillich R, Moore J (eds) 2 The use of force, human rights and general international legal issues (62 Naval War College international

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law studies, readings in international law from the Naval War College review 1947–1977), USA, p 172, 174 Milde (1984) The Chicago convention after 40 years. 9 Annals 119 Moore J (1906) A digest of international law, vol 7 Moore JB (1924) International law and some current illusions. MacMillan, NY, pp 206–207 Morgan (1988) The shooting of Korean Airlines Flight 007: responses to unauthorized incursions. In: Reisman W, Willard A (eds) International incidents: the law that counts in world politics 202 Nelson (1972) Contemporary practice of the United States relating to international law. 66 Am J Int L 836 Nixon R (1972) Denying Hanoi the means to continue aggression. 66 Dep’t St Bull 747 O’Connell DP (1975) The influence of law on sea power. Manchester University Press, Manchester, pp 169–180 O’Connell DP (1984) The international law of the sea, vol 2. Clarendon, Oxford, pp 1150-1151 Oppenheim L (1952) International law: a treatise, vol. 2799, 7th edn, Lauterpacht H (ed), p 813 Phelps (1985) Aerial intrusions by civil and military aircraft in time of peace. 107 Mil L Rev 255 Piggot F (1919) The declaration of Paris 1856 Poulantzas N (1969) The right of hot pursuit in international law pp 271–345 Powers (1958) Blockade: for winning without killing. US Naval Institute Proceedings, August 1958 Richard (1984) KAL 007: The legal fallout. Annals 10:147 Ritchie H. (1938) The ‘‘navicert’’ system during the world war, Washington D.C. Russo (1988) Neutrality at sea in transition: state practice in the Gulf war as emerging international customary law. 19 Ocean Dev Int L 381 Savage C (ed) (1934) 1 Policy of the United States toward commerce in war 415 Smith (1936) Aircraft and commerce in war. Brit Y B Inc L 37 Spaight J M (1947) Air power and war rights 396, 3rd edn. Longmans, London Swayze (1977) Traditional principles of blockade in modern practice: United States mining of internal and territorial waters of North Vietnam. JAG J 29:143 The Harvard research (1939) Draft convention on rights and duties of neutral states in naval and aerial warfare 33 (Supp.) A J I L 167 The Random House Dictionary (1987) (unabridged) 1777 (22nd edn) Thomas (1980) Pacific blockade: a lost opportunity for the 1930s. In: Lillich R, Moore J (eds) 62 Naval War College International Law Studies, Readings in International Law from the Naval War College Review 1947–1977, USA Tucker R (1955) The law of war and neutrality at sea, 50 Naval War College International Law Studies, USA Wright (1963) The Cuban quarantine. Am J Int L 57:546

Chapter 7

State-Sponsored Assassination in International and Domestic Law

Killing a man is murder unless you do it to the sound of trumpets. Voltaire

Abstract This chapter examines the international and US domestic law governing assassinations conducted or sponsored by States. The issue first came to widespread contemporary attention during the first Gulf War of 1990–1991 when US forces allegedly targeted Iraqi President Saddam Hussein. Since then allegations of ‘‘decapitation’’ strikes against regime leadership have surfaced in such conflicts as the 1999 campaign against the Federal Republic of Yugoslavia, the 2001 strikes against the Taliban, the 2003 war with Iraq and, most recently, the 2011 UN sanctioned operations in Libya. However, the law of assassination has a long lineage, stretching back to antiquity. The chapter clarifies much of the definitional confusion regarding the term by exploring both its historical basis and the extant prescriptive norms resident in both international and US law. It concludes with a survey of the practical factors likely to affect decisions about such targeting, an evaluation of current bans, and brief recommendations for future prohibitions.

Contents 7.1 Introduction..................................................................................................................... 7.2 Historical Understandings .............................................................................................. 7.3 Contemporary Prohibitions of Assassination During Peacetime .................................. 7.3.1 Major Treaties..................................................................................................... 7.3.2 Inferences from Other Legal Norms.................................................................. 7.3.3 Extradition Treaties ............................................................................................ 7.3.4 State Practice ...................................................................................................... 7.3.5 Conclusions ......................................................................................................... 7.4 Contemporary Prohibitions under the Law of Armed Conflict.................................... 7.4.1 From General Order 100 to the Oxford Manual............................................... 7.4.2 Hague IV and the Protocols Additional to the Geneva Conventions............... 7.4.3 Domestic Manuals on the Law of War .............................................................

284 287 291 291 293 294 296 300 301 301 303 304

Previously published in 17 Yale Journal of International Law (1997) 1.

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_7,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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7.4.4 Some Conclusions: A Definition of Wartime Assassination ............................ 7.5 Applying the Proper Corpus of Law ............................................................................. 7.5.1 When the Law of Armed Conflict Governs ...................................................... 7.5.2 State-Sponsored Killings as Self-Defense ......................................................... 7.5.3 State-Sponsored Killing as Anticipatory Self-Defense ..................................... 7.5.4 Determining Political Motivation of State-Sponsored Killing in Non-Defensive Situations .............................................................................. 7.6 Domestic Prohibitions .................................................................................................... 7.6.1 The Church Committee Investigations .............................................................. 7.6.2 Executive and Congressional Initiatives in the Aftermath of the Church Report.......................................................................................... 7.6.3 The Ban on Assassination Interpreted in Light of US Practice ....................... 7.7 Conclusions..................................................................................................................... 7.7.1 Practical Constraints ........................................................................................... 7.7.2 The Prohibitions Evaluated ................................................................................ 7.7.3 Final Thoughts .................................................................................................... References................................................................................................................................

305 315 315 318 319 323 325 326 334 335 348 348 350 356 358

7.1 Introduction Iraq’s invasion of Kuwait in August 1990 rekindled a smoldering debate over the legality of state-sponsored assassination. Many thought that the casualties inevitable in a massive land assault on Iraqi forces could easily be avoided by simply killing Saddam Hussein. Indeed, air strikes targeting1 Saddam’s command centers were often characterized as an effort to eliminate the Iraqi leader. However, when the Air Force Chief of Staff, General Michael Dugan, suggested that the death of Saddam Hussein might be a coalition objective, he was quickly dismissed.2 Surely few would argue that state-sponsored assassination is, or should be, legal. Yet at the same time the use of force in international relations, often taking the form of intentionally killing one’s enemies, has been justified throughout history.3 What is it, then, that distinguishes assassination from lawful combat, or even from unlawful murder not amounting to assassination? If assassination is, as will be discussed below, a violation of US and international law, and one for which both states and individuals may be held responsible,

1 In military parlance, a ‘‘target’’ is a specific object of attack, and ‘‘targeting’’ involves directing operations toward the attack of a target. This chapter uses these terms in the context of assassination. 2 Schmitt 1990a, at A1. 3 Unilateral resort to force was not considered a violation of customary international law until after World War II. For a discussion of the effect of the UN Charter on customary norms governing the use of force, see Reisman 1984.

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the term must be defined as clearly as possible to secure compliance. The imposition of responsibility in the absence of notice, even constructive notice, violates one of the most basic principle of law—nullum crimen sine lege. Although none of the domestic or international instruments proscribing assassination actually defines the prohibited conduct, scholars and practitioners have struggled to craft a working definition to serve as a guide to states in fashioning their behavior, and also as a prescriptive norm against which other states could judge and possibly sanction that behavior.4 Some scholars focus on the killing of internationally protected persons or high-level political figures.5 Others ignore the victim’s status and instead focus on the purpose of the act and the presence of any political motivations.6 Still others tend to analogize assassination to the classic law-of-war prohibition on treacherously killing one’s enemy.7 4 The problem arises in part from the fact that the US prohibition is contained in an executive order, see infra notes 189, 232, 230–232, rather than in legislation. The order does not include a section on definitions ordinarily found in statutes. For a general discussion on assassination and the problems relating to its definition, see Havens et al. 1975, pp. 1–20. A sampling of working definitions of assassination is found in Parks 1989, at 8 app. A. 5 See, e.g., Newman and Van Geel 1989, p. 434 (‘‘[A]ssassination refers to the intentional killing of a high-level political figure, whether in power or not. The assassination must, for our purposes, be authorized or condoned by a responsible official of a sovereign state as an intentional state action expected to influence the policies of another nation.’’); Brandenberg 1987, p. 55 n.l (defining assassination as ‘‘intentional killing of an internationally protected person’’ and using definition of ‘‘protected person’’ from Article 1 of Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, December 14, 1973, Article 1, para 1, 28 U.S.T. 1975, 1035 U.N.T.S. 167 [hereinafter New York Convention]). 6 See, e.g., Parks 1989, at 4 (defining assassination as ‘‘the murder of a targeted individual for political purposes’’); Sofaer 1989, p. 117 (defining assassination as ‘‘any unlawful killing of particular individuals for political purposes’’). Parks notes that the relevant criterion is not whether the target is politically prominent or serving in a public office. He argues that private individuals who are killed for political reasons are also victims of assassination. His use of the term ‘‘targeted’’ is instructive. The term imposes a requirement that the perpetrators plan to kill a particular individual because his death will yield desired political results. Thus, for Parks, the 1978 murder of defector Georgi Markov in London by Bulgarian State Security agents using a poison-tipped umbrella met the criterion, whereas the murder of Leon Klinghoffer by Abu el Abbas in 1985 aboard the Achille Lauro did not. Parks 1989, at 4. Similarly, Judge Sofaer notes that absent a political purpose, a wrongful killing might be murder, but it would not constitute assassination. Sofaer 1989, at 117. 7 Professor Boyle of the University of Illinois at Urbana-Champaign notes that the US executive order banning assassination is based on Article 23(b) of Hague IV which forbids treacherously killing or wounding the enemy. See Convention Respecting the Laws and Customs of War on Land, October 18, 1907, Annex: Regulations Respecting the Laws and Customs of War on Land, October 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague IV]; Boyle 1989, at A26; see also infra notes 95–100 and accompanying text. Boyle’s assertion is not entirely accurate, however, since the executive ban covers situations short of armed conflict, whereas Hague IV does not. Instead, the ban is a response to revelations of CIA assassination plots in peacetime. Thus, Boyle is only partially correct in asserting that despite the executive order, assassination would be prohibited by Hague IV, which he correctly notes was deemed customary law by the Nuremberg Tribunal. Boyle 1989, at A26. In the absence of the executive ban, a peacetime assassination might violate international law, but it would not violate Hague IV.

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Although each approach has merits, attempts to grapple with the issue of statesponsored assassination have been methodologically flawed. These proposals rely upon a definition of assassination without articulating how that definition expresses the current legal understanding.8 The proposals then use these arbitrarily derived standards to judge specific types of operations. Since the ultimate validity of conclusions depends on the accuracy of the chosen legal norm, the approaches are of limited prescriptive value. It is impossible to accept conclusions relating to assassination with any confidence in the absence of certainty over the definition’s accuracy. Assassination must be addressed in terms of definition and context. This approach searches for the meaning of the prohibition before attempting to judge any infractions of it, rather than analyzing specific activities under untested definitions. Prescriptions are dynamic in character: acts that constituted assassination when a particular normative prescription initially was set forth may not be so at a later date. If the ultimate goal of international law is world order, we should not view law as captured by the past. Instead, law must be understood in a fashion that best enables it to contribute to world order given the current state of affairs.9 This chapter primarily seeks to offer a definitional framework for analyzing situations implicating the assassination prohibitions. In light of past misuse of the term, this chapter seeks to define ‘‘assassination’’ within the narrow limits of current legal norms to maximize the utility of proscriptions on the act. In the process of developing the framework, Sects. 7.2–7.5 assess the definition of assassination under international law, placing particular emphasis on the law of armed conflict.10 Section 7.6 then considers the more controversial issue of limits under US law, reviewing attitudes and practices since the domestic ban was first promulgated in 1976 to establish a workable contemporary framework. Section 7 draws tentative conclusions that should enable policymakers or legal advisers to better address, within the confines of international and domestic law, events that threaten world order. In addition to providing a definitional framework, this chapter also seeks to consider assassination contextually, through an analysis of policy goals at both the domestic and international level. In this respect, this study attempts to provide more than a simple catalogue of textual prohibitions. It will consider broader policy objectives underlying this particular use of force. Finally, this chapter considers assassination of individuals from the perspective of international legal remedies. The study will conclude with a survey of practical factors likely to affect decisions about targeting, an evaluation of current bans, and brief recommendations for future prohibitions.

8

See, e.g., Brandenberg 1987, at 655 n.1; Newman and Van Geel 1989, at 434. A classic example of this view of law in American jurisprudence is the expansive use of the Commerce Clause to foster civil rights during the era of the Warren Court. 10 This chapter uses the phrases ‘‘law of war’’ and ‘‘law of armed conflict’’ interchangeably. 9

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7.2 Historical Understandings The propriety and means of killing one’s enemy have been the topic of scholarly reflection for centuries. Scholars and historical writers thus provide the foundation upon which contemporary prohibitions are based. Indeed, while modern attitudes toward assassination reflect a degree of non-European influence, present prescriptions trace their lineage primarily to Western roots. A proper understanding of present prohibitions of assassination requires a recognition that these prohibitions are the product of long and systematic refinement of the rules governing the use of force. Assassination, or at least killing outside the context of organized warfare, is not an exclusively modern phenomenon. The Greeks knew assassination, as did the Romans. It is described in the Bible, and it was a common practice during the Middle Ages. Assassination has been employed in the service of both church and state, it played a role in the First World War, and it remains a prevalent device in the pursuit of foreign policy objectives.11 Understanding the heritage of modern views on assassination compels recognition of the narrow approach taken by early thinkers. Writing in the thirteenth century, Saint Thomas Aquinas reputedly contended that killing the sovereign for the common good was legally justified and, in some cases, even noble.12 Sir Thomas More similarly proclaimed that in warfare ‘‘great rewards’’ awaited those who killed ‘‘the enemy prince,’’13 while Alberico Gentili, the renowned Italian thinker, cited with approval the famous instance where Pepin, the father of Charlemagne, crossed the Rhine to slay his sleeping enemy. For Gentili it made ‘‘no difference at all whether you kill an enemy on the field of battle or in his camp.’’14 Likewise, Hugo Grotius, also citing the case of Pepin, noted: Not merely by the law of nature but also by the law of nations… it is in fact permissible to kill an enemy in any place whatsoever; and it does not matter how many there are that do the deed, or who suffer. … According to the law of nations not only those who do such deeds, but also others who instigate others who do them, are considered free from blame.15

As these cases illustrate, the means of warfare were not limited to traditional combat. Nevertheless, specifically targeting one’s enemy was not an unrestricted right. Most scholarly writings on the subject discussed it solely in the context of armed conflict. The extension of these standards to peacetime activities would disregard the basic fact that killing is a primary component of warfare, as the use of deadly force in peacetime can be justified only in exceptional cases. Thus, while

11 12 13 14 15

See generally Ford 1985 (including historical analysis of assassination). Newman and Van Geel 1989, at 436. More 1516. Gentili 1612. Grotius 1625, quoted in Friedman 1972, p. 39.

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helpful in understanding the law of war, the application of these historical views to peacetime relations must be evaluated critically. Targeting specific individuals during wartime generally was considered valid, yet the permissible means were not viewed as unlimited.16 Although Ayala commended Saint Augustine’s opinion that it ‘‘is indifferent from the standpoint of justice whether trickery be used’’ in assassinating the enemy,17 he was quick to distinguish trickery from ‘‘fraud and snares.’’18 This exception survives in present legal codes as the ruse-perfidy distinction.19 Gentili similarly denounced ‘‘treachery,’’ taking issue with Sir Thomas More’s utility-based standard both on moral and practical grounds. He condemned More’s assertion that by employing assassination the death of innocents could be avoided while only the guilty would be punished. Gentili labeled the argument ‘‘shameful’’ and decried its failure to consider ‘‘justice or honour.’’20 Gentili further observed that the use of treacherous assassination failed More’s own test. In a line of reasoning that pervades the current debate, he argued: But even what he sets forth about utility is uncertain; for will there be no successor to the deceased prince? Will not his citizens throw themselves into war with the more energy because of that new wrong, signal and shameful as it is? We shall hear that soldiers are roused to frenzy when their leader is slain by no legitimate means.21

Gentili went on to label treachery ‘‘so contrary to the law of God and of Nature, that although I may kill a man, I may not do so by treachery.’’22 He also warned that treacherous killing invites reprisal, as rulers who engage in assassination operations often become targets themselves.23 Gentili’s emphasis on treachery as the distinguishing factor between lawful and unlawful wartime killing is the essence of his contribution. Under Gentili’s model, treachery is the violation of the trust a victim rightfully expects from an assassin. Accordingly, Pepin’s act of sneaking into his enemy’s tent was not unlawful, since

16

This was the case for a majority of scholars. Conversely, Cornelius van Bynkershoek, writing in the eighteenth-century, argued that ‘‘everything is lawful against an enemy,’’ although he qualified the statement by noting that perfidy was an exception to the general rule. Van Bynkershoek 1737. 17 Ayala 1582. 18 Id. at 87. 19 See, e.g., Dep’t of the Navy, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations (NWP 9/FMFM 1-10), §§ 12.1 to 12.4 (1989) [hereinafter Navy Manual]; Dep’t of the Air Force, International Law–The Conduct of Air Operations (AFP 11031), } 8–4 (1976) [hereinafter Air Force Manual]; Dep’t of the Army, the Law of Land Warfare (FM 27-10), Articles 50–55 (1956) [hereinafter Army Manual]. 20 Gentili 1612, at 167. 21 Id. 22 Id. at 168. 23 We ought to think, not what we should wish to happen to the enemy, but what we should have to fear in such a case …This maxim is the true foundation of justice, which will not do to others what it would not wish to be done to itself, and will not refuse to others what it would wish to have done to itself, as Saint Bernard well puts it. Id. at 169.

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the victim had no reason to trust Pepin.24 By contrast, an equivalent act by a member of the victim’s household would constitute unlawful assassination.25 Anyone encouraging a treacherous killing would similarly be held responsible.26 Writing in the same period, Hugo Grotius echoed Gentili’s views on treachery: In general a distinction must be made between assassins who violate an express or tacit obligation of good faith, as subjects resorting to violence against a king, vassals against a lord, soldiers against him whom they serve, those also who have been received as suppliants or strangers or deserters, against those who have received them; and such as are held by no bond of good faith.27

As with Gentili, treachery for Grotius meant a breach of confidence, something he deemed inconsistent with the law of nations and of nature. Grotius recognized, however, that not all treachery was prohibited by the law of nations. He distinguished treacherous killing by pointing out its potential for encouraging reprisals. All treachery may be sinful, but treacherous killing severely disrupts what little order exists in war.28 The Swiss scholar Emmerich de Vattel advanced identical principles a century later. He specifically defined assassination as ‘‘a murder committed by means of treachery,’’29 describing it like Grotius and Gentili as a breach of confidence. Vattel ridiculed any suggestion that the manner in which an enemy was killed was irrelevant simply because killing is justified in times of war. Describing this view as ‘‘[s]trange principles, fortunately condemned by even the vaguest ideas of honor,’’ he accurately observed that the violation of a right by another does not render irrelevant the enforcement of that right.30

24

So Pepin, father of Charles the Great, having crossed the Rhine attended by a single companion, slew his enemy in bed. You will perhaps find nothing to censure in this save the recklessness of the deed, which has nothing to do with the rights of the enemy. It makes no difference at all whether you kill an enemy on the field of battle or in his camp. Id. at 168. 25 ‘‘For whose life can be safe, if it shall be necessary to fear plots even from one’s own household?’’ Id. 26 Id. 27 Grotius 1625, at 38–39. 28 Id. at 3940. 29 ‘‘But in order to reason clearly on this question we must first of all avoid confusing assassination with surprises, which are, doubtless, perfectly lawful in warfare. When a resolute soldier steals into the enemy’s camp at night and makes his way to the general’s tent and stabs him, he does nothing contrary to the natural laws of war, nothing, indeed, but what is commendable in a just and necessary war…. If anyone has absolutely condemned such bold strokes it was only done with the object of flattering those in high position who would wish to leave to soldiers and … … Hence I mean by assassination a murder committed by means of treachery, whether the deed be done by persons who are subjects of him who is assassinated, or of his sovereign, and who are therefore traitors, or whether it be done by any other agent who makes his way in as a suppliant or refugee, or as a turncoat, or even as an alien; and I assert that the deed is a shameful and revolting one, both on the part of him who executes and of him who commands it.’’ Vattel 1758, § 155, at 287–288. 30 Id. at 287.

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Perhaps Vattel’s most important contribution to understanding assassination was his emphasis on the principle of necessity. Although he recognized a right to kill without treachery an enemy leader, Vattel argued that this right vests only when lesser measures do not suffice. He found both the scale of the conflict and the state interests in killing an enemy official critical in assessing this balance. Vattel could not countenance the killing of an enemy sovereign absent violent conflict and a state threat; in such circumstances, ‘‘to take away the life of the sovereign of the hostile Nation, when it could be spared, would be to do a greater injury to that Nation than is, perhaps, necessary for the successful settlement of the dispute.’’31 Three points critical to understanding current prescriptions of assassination emerge from this brief historical review.32 First, scholars appear to have placed no absolute prohibition on seeking the death of one’s enemy by unconventional means. Therefore, to the extent that nineteenth- and twentieth-century norms limit assassination, they should be understood not as illustrations of a broader prohibition, but rather as exceptions to the legitimate wartime practice of selecting specific enemy targets. Thus, analysis of the legality of a killing operates under a presumptively narrow definition of assassination unless clear evidence suggests contrary intent. Second, the term ‘‘treachery,’’ a critical component in the current law of armed conflict, is designed as a breach of confidence by an assailant. However, one must be careful not to define treacherous acts too broadly. Use of stealth or trickery, for instance, is not precluded, and will not render an otherwise lawful killing an assassination. Treachery exists only if the victim possessed an affirmative reason to trust the assailant. Thinking in terms of ruses and perfidy is useful in understanding this distinction. Ruses are planned to mislead the enemy, for example, by causing him to become reckless or choose a particular course of action. By contrast, perfidy involves an act designed to convince the enemy that the actor is entitled to 31

In former times he who succeeded in killing the King or general of the enemy was commended and rewarded; we know the honors attending the spolia opima. Nothing could have been more natural than such an attitude; for the ancients almost always fought for the very existence of the State, and frequently the death of the leader put an end to the war. At the present day a soldier would not dare, ordinarily at least, to boast of having killed the enemy’s King. It is thus tacitly agreed among sovereigns that their persons shall be held sacred. It must be admitted that where the war is not a violent one, and where the safety of the State is not at stake, such respect for the person of the sovereign is entirely commendable and in accordance with the mutual duties of Nations. In such a war, to take away the life of the sovereign of the hostile Nation, when it could be spared, would be to do a greater injury to that Nation than is, perhaps, necessary for the successful settlement of the dispute. But it is not a law of war that the person of the enemy’s King must be spared on every occasion, and the obligation to do so exists only when he can easily be made prisoner. Id. § 159, at 290. 32 The nature of war has changed so much in recent years that the views of the European scholars arguably have only nominal bearing on contemporary norms. The initiation of war, for instance, was legal under customary law at the time of these historical writings. Since World War II, the legality of initiating war has met considerable debate. The issue, however, is relevant only to the question of whether an act is wrongful as an illegal resort to force. It does not bear directly on whether a particular category of acts is illegal per se.

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protected status under the law of war, with the intent of betraying this confidence.33 Treachery, as construed by early scholars, is thus broader than the concept of perfidy. Nevertheless, the same basic criteria that are used to distinguish lawful ruses from unlawful perfidies can be applied to determinations of treachery.34 Finally, Vattel’s writings illustrate the possible interrelationship between norms specifically governing assassination and those more generally applicable under international law. Any evaluation of the current status and scope of a prohibition on assassination must therefore include an analysis of broader principles not specific to assassination, such as those of necessity.

7.3 Contemporary Prohibitions of Assassination During Peacetime 7.3.1 Major Treaties Only two major treaties specifically address the topic of assassination: the Charter of the Organization of African Unity (OAU)35 and the convention on the prevention and punishment of crimes against internationally protected persons, including Diplomatic Agents (New York convention).36 Both assist in identifying current attitudes towards assassination. The OAU charter explicitly addresses assassination. Pursuant to Article II(5), OAU members adhere to the principle of ‘‘unreserved condemnation, in all its forms, of political assassination….’’37 The provision is unique among charters of regional and international organizations. Although it may express the view of several, perhaps many, nations, it hardly describes the current state of international law. At best it serves as a piece of evidence, weakened by its uniqueness, of a possible customary norm. Moreover, the ongoing violence that plagues the African continent suggests that the provision is more hortatory than substantive. The New York Convention is equally problematic. The Convention entered into force in 1977 and has been ratified by nearly half the world’s nations, including many of the major powers. Designed to encourage criminalization of violent acts

33

See, e.g., Navy Manual, supra note 19, § 12.1 (discussion of permitted and prohibited deceptions); Air Force Manual, supra note 19, }} 8–4 to 8–6; Army Manual, supra note 19, Articles 50–55. 34 The Army Manual treats treachery and perfidy in the same article, without making a textual distinction between the two terms. Army Manual, supra note 19, Article 50. For additional early condemnation of assassination as a form of treacherous murder, see Bluntschli 1878, § 52; Halleck 1866, p. 181; Lawrence 1923, pp. 540–541. 35 Charter of the Organization of African Unity, May 25, 1963, 2 I.L.M. 766 (1963). 36 New York Convention, supra note 5. 37 Id. Article 3, para 5.

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against certain internationally protected persons, the treaty encompasses death threats, attempted murder, and accomplice liability.38 Internationally protected persons include heads of state, foreign ministers, and representatives of state or international/intergovernmental organizations entitled to special (usually diplomatic) protection. The treaty also covers family members of these officials.39 The treaty imposes three affirmative duties on signatories. First, it requires each party to promulgate internal laws prohibiting certain acts, and to establish jurisdiction over cases in which a crime is committed on its territory, the offender is a national, and the crime is committed against an internationally protected person.40 Second, parties to the treaty must take measures to prevent such crimes, either cooperatively or on their own.41 Finally, states harboring offenders are obliged to extradite them upon request or, alternatively, to commence prosecution themselves.42 If the extradition request comes from a state with which the harboring state has an extradition treaty (an ordinary condition of extradition), the acts prohibited in the Convention are deemed incorporated into the catalogue of extraditable offenses contained in that agreement. When there is no treaty, the Convention may serve as the requisite mutual relationship.43 The major failing of the New York Convention is that it accords a target protected status only when the target of assassination is abroad.44 Thus, the murder of protected individuals in their home territory do not trigger the treaty provisions. Obviously this gap may not be a problem from the perspective of domestic law enforcement, as the murder of governmental or diplomatic persons at home presumably would be vigorously investigated and prosecuted. Nevertheless, the Convention falls short of prescribing an international norm against assassination.45 Hence, the New York Convention does not treat such acts as assassination under international law, since they do not violate legislation promulgated in compliance with the Convention. Moreover, such killings might go unpunished if the assassin seeks refuge in a state

38 39 40 41 42 43 44

Id. Article 2. Id. Article 1. Id. Article 3. Id. Article 4. Id. Article 7. Id. Article 8. For example, the New York Convention defines ‘‘Internationally protected person’’ as: a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany him.

Id. Article 1, para l(a). 45 Although some killings may occur when the victim is abroad, many will not. Indeed, of the five alleged Central Intelligence Agency (CIA or Agency) assassination attempts investigated by the Church Committee, all involved targeting the victim in his own nation. See discussion infra notes 190–212 and accompanying text.

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that lacks either an applicable extradition treaty or domestic legislation authorizing jurisdiction. Even if domestic law criminalizes the act, the state sheltering the killer could exercise its discretion, absent an extradition treaty, and choose not to prosecute the offender. This conduct would not violate the convention.

7.3.2 Inferences from Other Legal Norms State attitudes toward assassination can be inferred from other legal norms. Murder, for instance, is criminalized in all the world’s legal systems and violence and the use of force are broadly condemned under international law. Perhaps the most important articulation of the non-violence principle appears in Article 2(4) of the UN Charter. Article 2(4) provides: ‘‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN.’’46 The sole exception to this provision is collective or individual selfdefense pursuant to Article 51 of the Charter.47 In the Nicaragua case, the International Court of Justice, quoting the International Law Commission, emphasized the centrality of the non-violence principle. It stated that 2(4) constituted ‘‘a conspicuous example of a rule in international law having the character of jus cogens.’’48 The Court then attempted to apply the principle to the facts of the case.49 The prohibition against force in interstate relations appears in several other international instruments. Often the prohibitions occur in regional accords, as in the Rio Treaty.50 The UN has condemned the use of force on many occasions, most notably in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the UN,51 46

UN Charter Article 2, 14. ‘‘Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the UN, until the Security Council has taken the measures necessary to maintain international peace and security.’’ Id. Article 51. 48 Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 4, 90 (June 27) (quoting Draft Articles on the Law of Treaties, [1966] 2 Y.B. Int L. Comm’n 247). 49 See Reisman 1986. 50 Inter-American Treaty of Reciprocal Assistance, September 2, 1947, Article 1, T.I.A.S. No. 1838, 21 U.N.T.S. 77 [hereinafter Rio Treaty]. Article 1 provides: ‘‘The High Contracting Parties formally condemn war and undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the UN or of this Treaty.’’ 51 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance With the Charter of the UN, G.A. Res. 2625, UN GAOR, 25th Session, Supp. No. 28, at 121, UN Doc. A/8028 (1970) [hereinafter Declaration on Principles]. The Preamble expresses the underlying basis for the Declaration: ‘‘[I]t [is] essential that all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any matter inconsistent with the UN.…’’ 47

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and in the Definition of Aggression Resolution.52 The array of agreements relating to terrorism also reveals the world community’s rejection of violence as an instrument of international affairs,53 as do the human rights treaties expressing the imperative of respect for life.54 Certainly, the general condemnation of violence and acts resulting in death in these international agreements suggests agreement on the wrongfulness of the taking of life. Any ban on assassination, comports with this principle. Indeed, any state-sponsored assassination, however defined, would probably violate the prohibition on the use of force contained in Article 2(4) of the UN Charter. Unfortunately, however, these instruments do little to define assassination as a workable term under international law.

7.3.3 Extradition Treaties Extradition treaties provide another source of information on the contemporary status of assassination during peacetime under international law. Extradition treaties do not criminalize acts; instead, they rely upon domestic prescriptions and interstate compliance. Nevertheless, the status of particular crimes covered in extradition treaties indicates state attitudes toward those crimes. Thus, if the treaties recognize a distinct form of murder perhaps equivalent to assassination, understanding this distinction will contribute to a broader understanding of the term under international law. An excellent early study of extradition treaties was conducted in 1935 by the Harvard Research in International Law, a group of American scholars convened under the auspices of the Harvard Law Faculty to prepare draft conventions at 52

Definition of Aggression, G.A. Res. 3314, U.N. GAOR, 24th Session, Supp. No. 3, at 142, UN Doc. A/9631 (1974). Article 1 of the Annex defines aggression as ‘‘the use of armed force by a state against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the UN …’’ The legal status of such documents is unclear. The best view is that the resolution does not bind the Security Council in its consideration of breaches or threats to peace, since only Charter provisions have this power. Some states, however, take the view that the definition is a binding interpretation. For a brief discussion of the Definition of Aggression, see 3 Encyclopedia of Public International Law 5 (Rudolf Bernhardt ed., 1982). 53 See, e.g., International Convention Against the Taking of Hostages, December 19, 1979, G.A. Res. 34/146, UN GAOR, 34th Session, Supp. No. 46, at 245, UN Doc. A/34/46 (1979); Resolution on Measures to Prevent International Terrorism, December 9, 1985, U.N. Doc. A/ Res./40/61 (1985); European Convention on the Suppression of Terrorism, opened for signature January 27, 1977, 15 I.L.M. 1272 (1976); OAS Convention on Terrorism, opened for signature February 10, 1971, 27 U.S.T. 3949 (1976), 10 I.L.M. 2S5 (1971). 54 See, e.g., Universal Declaration of Human Rights, Article 3, G.A. Res. 217, 183d plen. meeting at 71, U.N. Doc. A/810 (1948); American Declaration of the Rights and Duties of Man, Article 1, O.A.S. Res. 30, May 2, 1948; Convention on the Prevention and Punishment of the Crime of Genocide, adopted December 9, 1948, 78 U.N.T.S. 277.

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international conferences.55 In preparing the draft extradition convention, participants surveyed several existing bilateral and multilateral extradition treaties. They found murder to be a universally extraditable offense. Most extradition treaties reviewed included assassination within the meaning of murder, grouping it with such crimes as parricide, poisoning and infanticide.56 A survey of 42 bilateral extradition treaties of the US uniformly found assassination included under the definition of murder.57 Similarly, in bilateral treaties between nations other than the US, assassination was almost universally an extraditable offense,58 several treaties even treat the murder or attempted murder of a head of state or his family as a separate extraditable offense.59 The political offense exception in most extradition treaties further illuminates the meaning of assassination under international law. The exception permits countries to refuse extradition if the offense involved is political by nature or involves political motivations.60 The provision derives from eighteenth-century notions of a right to engage in revolutionary activities in the face of oppression. Governments sought to avoid contributing to the suppression of foreign citizens by scrutinizing extradition requests of oppressor states. Signatories accordingly reserved the right to refuse extradition if the alleged offenses had ‘‘pure’’ political underpinnings.61 The exception is not without problems. Political offenses can be abhorrent. A case in point involved the extradition request from France to Belgium for the surrender of an individual who had placed a bomb under the railway upon which 55

Harvard Research in International Law 1935. Id. app. III, at 274–296; see, e.g., Treaty for the Extradition of Criminals and for the Protection Against Anarchism, January 28, 1902, Article II, } 1 in Harvard Research in International Law 1935, at 278; Agreement on Extradition, July 18, 1911, Article 2, 11, in Harvard Research in International Law 1935, at 282. 57 Harvard Research in International Law 1935, app. II(A), at 243–244. 58 Id. app. II(B), at 258-260. A similar formula is employed in British extradition treaties. See, e.g., Poland (Extradition) Order in Council, February 26, 1934, UK-Pol., 1934 Statutory Rules and Orders 689; Iraq (Extradition) Order in Council, April 19, 1933, UK-Iraq, 1933 Statutory Rules and Orders 843; Albania (Extradition) Order in Council, June 27, 1927, UK-Alb., 1927 Statutory Rules and Orders 480; Belgium, Order in Council, March 6, 1902, UK-Belg., 1902 Statutory Rules and Orders 20; Bolivia, Order in Council, October 20, 1898, UK-Bol., 1898 Statutory Rules and Orders 32. 59 See, e.g., Convention for the Extradition of Criminals, October 28, 1926, Liber.-Monaco, 68 L.N.T.S. 241; Extradition Convention, May 31, 1889, Belg.-Neth., 81 Brit. and Foreign ST. PAP. 276; Extradition Convention, January 15, 1875, Belg.-ltaly, 66 Brit. and Foreign ST. PAP. 578. 60 See, e.g., European Convention on Extradition, December 13, 1957, Article 3(1), 359 U.N.T.S. 274 (‘‘Extradition shall not be granted if the offense in respect of which it is requested is regarded by the requested Party as a political offense or as an offense connected with a political offense.’’). 61 See Sofaer 1985, p. 58, 60. Although the Draft Convention prepared by the Harvard Research did not list extraditable offenses, choosing instead to base extractability on the length of the authorized imprisonment (2 years), it included a political offense exception. Harvard Research in International Law 1935, Article 5. 56

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Emperor Napoleon III was to travel. In accordance with the terms of the treaty’s political offense exception, Belgium refused to extradite the offender. Appalled by this result, the Belgian parliament promulgated legislation prohibiting the government from designating certain acts as political. The legislation provided that an ‘‘attack upon the person of the head of a foreign government or of members of his family, when this attack takes the form of either murder, assassination, or poisoning’’ does not fall under the exception.62 Today, many extradition treaties contain this provision, known as the attentat clause.63 The general use of attentat clauses is important for two reasons. First, it indicates that categories of murder differ qualitatively, thereby meriting separate treatment. To this degree, the attentat clause denotes a distinct legal norm governing assassination. Secondly, it focuses attention on persons occupying political positions. Narrowly understood, this focus follows the New York Convention’s approach of basing illegality on the status of the victim. Accordingly, assassination can be said to include the killing of certain political figures.

7.3.4 State Practice Contextual consideration of assassination requires investigation beyond the text of international agreements, to include a consideration of state practice. National courts presumably would find assassination unlawful. It is unclear, however, whether courts generally treat assassination as an offense distinct from murder. For example, US courts have decided two notable cases concerning alleged state-sponsored assassination. Letelier v. Republic of Chile concerned the murder of Orlander Letelier in Washington, D.C., with the alleged complicity of the Chilean government.64 Although Letelier had previously served as Chile’s Foreign

62

Harvard Research in International Law 1935, Article 5. See, e.g., European Convention on Extradition, supra note 62, Article 3(3) (‘‘The taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed a political offense for the purposes of this Convention.’’); see also Supplementary Treaty Concerning Extradition, June 8, 1972, US–UK–Ir., Article l(c), 28 U.S.T. 227, 24 I.L.M. 1105 (1985) (offenses within scope of Convention on Prevention and Punishment of Crimes against Internationally Protected Persons are not political offenses for purposes of extradition treaty); Treaty Concerning Extradition and Mutual Assistance in Criminal Matters, June 27, 1962, Belg.Neth.-Lux., Article 3(2)(a), 616 U.N.T.S. 79 (offenses against head of state or member of reigning royal family are not political offenses for purposes of treaty); Convention on Extradition Adopted by the Seventh International Conference of American States, December 26, 1933, Article 3(e), 49 Stat. 3111, 165 L.N.T.S. 45 (attempts against life of chief of state or family members are not political offenses). The Harvard Research did not include an attentat clause in its Draft Convention since some states, including Switzerland and the Netherlands, refused to include the clause in their treaties, maintaining that an attack upon a head of state is a political offense by nature. Harvard Research in International Law 1935, at 116–117. 64 488 F. Supp. 665 (D.D.C. 1980). 63

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Minister and Ambassador to the US, at the time of his murder he held no official position. In fact, he was in the US organizing opposition to the governing regime.65 When the participation of the Chilean government became apparent, the US sought extradition of those responsible for the murder. Given its own involvement, the Chilean government not surprisingly denied the request. Letelier’s widow then brought a civil suit against Chile, pursuant to the Foreign Sovereign Immunities Act (FSIA).66 Although the Chilean government did not appear in court, it argued through diplomatic channels that FSIA was inapplicable under the discretionary act of state exemption in the statute.67 The district court, however, held that ‘‘[w]hatever policy options may exist for a foreign country, [the Chilean government] has no ‘discretion’ to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.’’68 While the current Chilean government did not agree to extradite the suspects, it passed legislation providing compensation to Letelier’s family and reopened criminal prosecutions against them.69 The Ninth Circuit Court of Appeals similarly condemned state-sponsored assassination in Liu v. Republic of China.70 Henry Liu, a journalist and historian originally from Taiwan, moved to California where he became an outspoken critic of the Taipei regime. He was subsequently murdered by two gunmen acting on the orders of Admiral Wong, Director of the Republic of China’s Defense Intelligence Bureau. As in Letelier, subject-matter jurisdiction arose under FSIA.71 Taiwan based its defense on the act of state doctrine, which generally provides that courts of one state will not sit in judgment on the domestic acts of another state.72 The Ninth Circuit determined that a relevant factor in applying the act of state doctrine was the degree of international consensus concerning the alleged act. Citing both the New York Convention and treaties relating to terrorism, it found that an international consensus condemned murder. The court held that the ‘‘act of state doctrine does not automatically bar a suit against a foreign nation when it is alleged that the nation ordered the assassination of an American citizen within the US.’’73 65

Interview with Professor Pablo Ruiz-Tagle, Universidad Diego Portales, in New Haven, Conn. (March 20, 1991) [hereinafter Ruiz-Tagle Interview]. 66 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602–1611 (1988). 67 28 U.S.C. § 1605(a)(5)(A) (1988). The section provides for immunity against ‘‘any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.’’ Id. 68 488 F. Supp. at 673. 69 Ruiz-Tagle Interview, supra note 65. 70 892 F.2d 1419 (9th Cir. 1989). 71 Id. at 1421-1423. 72 The principles of the act of state doctrine are set forth in Underhill v. Hernandez, 168 US 250, 252 (1897). 73 892 F.2d at 1434. For a discussion of Liu, see Alford 1989.

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Courts in the UK have also condemned assassination. In Crown v. Gill the Court of Appeals upheld a harsh sentence applied to conspirators in an assassination plot against Rajiv Gandhi.74 Similarly, in Crown v. Al-Banna the court upheld the sentences of three Palestine National Liberation Movement members convicted of the attempted assassination of the Israeli ambassador to Great Britain.75 Responding to potential criticism that the sentences were excessive, the court noted: ‘‘It should be clearly understood that political murders or attempted political murders of this sort and kindred offenses will be met where appropriate with sentences of this length, namely 30 or 35 years. For the parts played by these men these sentences were manifestly condign and accurate.’’76 These cases, though limited in scope, suggest that at least in the Western tradition assassination is distinct from murder to merits harsher punishment. They imply that assassination also includes the killing of individuals not occupying protected positions. In both of the US cases, assassination was seen as driven by a political purpose. The British cases could also be viewed in this context. Most killings of political figures or government officials are likely to be politically motivated; not all political killings, however, are likely to be of such individuals. This cursory look at the case law thus reflects a broader understanding of assassination than that found in the relevant international agreements discussed above. A more general examination of international relations also sheds light on existing attitudes toward assassination. As Professor Reisman has observed, there are ‘‘two ‘relevant’ normative legal systems: one that is supposed to apply, which continues to enjoy lip service among elites, and one that is actually applied.’’77 The first he describes as the ‘‘myth system,’’ the second the ‘‘operational code.78 Pinpointing the myth system with regard to assassination is difficult since concrete law on this point is sparse. Although the absence of a definitive myth system does not necessarily preclude the existence of an operational code, Professor Reisman and his colleague, James Baker, recently concluded that an operational code governing assassination is difficult to articulate79: ‘‘Because of the difficulties of definition, legal analysis of the lawfulness of [assassination] is best resolved with a contextual reading of each case which relies on both political context and reference to the traditional doctrines governing the use of force: proportionality, necessity and discrimination concerning the target.’’80 The merit of this conclusion is demonstrated in the truism that ‘‘one man’s terrorist is another man’s freedom fighter.’’ The same states that condemned the

74

R. v. Gill, 1989 Crim. L.R. 358 (UK). Crown v. AI-Banna, 6 Crim. App. R. 426 (1984) (UK). 76 Id. 77 Reisman 1979, pp. 15–16, quoted in Reisman and Baker 1992. 78 On the myth system and the operational code, see Reisman and Baker 1992, at 23–24; Reisman 1987, pp. 23–35. 79 Reisman and Baker 1992, at 69–71. 80 Id. at 71. 75

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US bombing of Libya as an attempt to kill Qadhafi supported the imposition of a death penalty against the author Salman Rushdie. Those who denounced Israeli attacks upon Palestine Liberation Organization (PLO) leaders applauded assassinations by the PLO of Israeli officials. As Professor Reisman notes, actual behavior may deviate from both the myth system and the operational code.81 In the case of assassination, however, uncovering the operational code itself seems impossible. The assassination of Abu Jihad illustrates this point. On the morning of April 16, 1988, a team of nine Israeli commandos entered the Tunis home of Khalil alWazir, also known as Abu Jihad, and murdered him in front of his family. At the time, Abu Jihad was a top PLO military strategist who had previously been implicated in several terrorist attacks against Israel.82 Tunisia brought the matter to the attention of the Security Council, claiming a violation of its sovereignty and territorial integrity.83 By a vote of 14 to none, the US abstaining, the Security Council denounced the Israeli action.84 Yet the resolution made no mention of assassination; instead, the Security Council limited itself to condemning ‘‘vigorously the aggression, perpetrated… against the sovereignty and territorial integrity of Tunisia in flagrant violation of the Charter of the UN, international law and norms of conduct.’’85 The omission is perhaps due to the matter’s technical posture as a territoriality/ sovereignty dispute. Yet the Security Council was not procedurally bound to limit the resolution to the initial complaint. It presumably chose not to address the glaring issue of state-sponsored assassination. The incident provides some measure of the unease with which international bodies handle the politically sensitive issue of assassination. Furthermore, a review of the Security Council proceedings reveals a conspicuous silence by certain states on the issue of assassination. Although the delegates who spoke during the deliberations uniformly condemned the act (including the ambassador of the US, which abstained because the resolution failed to reflect a proportional allocation of blame for violence in the Middle East),86 many restricted their statements to the themes of territoriality and sovereignty. The PLO representative and the Syrian and Tunisian ambassadors did

81

Id. at 23. See Fischer and Brodie 1988, at 1; Statement of Mr. Mestiri, Representative of Tunisia, UN SCOR, 43d Session, 2807th meeting at 6–7, UN Doc. S/PV.2807 (1988). 83 Statement of Mr. Mestiri, supra note 82, at 7. 84 S.C. Res. 911, UN SCOR, 43d Session, at 15, UN Doc. S/19798 (1988). 85 Id. 86 Despite the strong views the US holds on political assassination, and despite our strong support for Tunisia’s national sovereignty and territorial integrity, the US has decided to abstain in the vote on the draft today because it disproportionately places all blame for this latest round in the rising spiral of violence in the Middle East on one event only while failing to mention other actions that preceded it. It also includes language which is suggestive of Chapter VII sanctions. Statement of Ambassador Okun, Representative of the US, April 25, 1988, UN SCOR, 43d Session, 2810th meeting at 15, UN Doc. S/PV.2810 (1988). 82

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mention assassination, but they focused on the sovereignty issue. The Kuwaiti and Jordanian representatives took a similar approach. Interestingly the non-MiddleEastern delegates tended to concentrate on the issue of assassination.87 Although the reasons for this apparent split are purely speculative, the debate clearly evidenced a hesitancy to condemn political assassination unequivocally. Perhaps the Middle-Eastern representatives thought that emphasizing territoriality and sovereignty would avert a US veto. This strategy illustrates the uncertainty surrounding assassination in international law, at least concerning more established concepts like territoriality and sovereignty. It is more likely, though still speculative, that some states downplayed the assassination issue because it was a prohibition they did not want to endorse strongly on the record. Some of them support the PLO, which uses assassination on a regular basis; and some of the states either directly or indirectly have been involved in such acts. Hence, it would not be in their long-term interest to dwell on assassination and thereby provide their opponents with ammunition to use in denouncing their future misdeeds.

7.3.5 Conclusions The Security Council proceedings in the Abu Jihad affair indicate that although the international community views political assassination as wrong in principle, in practice that view is ambiguous, or worse, bereft of substance. The affair reveals that the operational code and any prescriptive conclusions remain elusive. Outside the law of armed conflict, international norms concerning assassination are scarce. The preceding discussion nonetheless provides six general guidelines as a basis for further inquiry. First, the New York Convention, the OAU Charter, extradition treaties, case law, and international reaction to incidents such as the killing of Abu Jihad demonstrate that assassination is an illegal offense under international law, and that it constitutes an offense qualitatively different from murder. Second, assassination involves the targeting of a particular individual. None of the authorities indicates that assassination includes indiscriminate killing. Thus for acts to be understood as assassination, they must be directed against specific targets. Third, assassinations are killings with political overtones. How this is to be determined, however, remains uncertain. At a minimum, the murder of a head of state (assuming the killing was politically motivated) meets the criteria for assassination, as the prevalence of attentat clauses in extradition treaties demonstrates. It becomes less clear that a killing will rise to the level of assassination as one moves further 87

See generally UN SCOR, 43d Session, 2807th meeting, U.N. Doc. S/PV.2807–2810 (1988). The statement of Sir Crispin Tickell of the UK provides an apt example: ‘‘[S]upport or sponsorship of murder by Governments is doubly repugnant; it is a betrayal of the natural expectation of the international community that Governments will uphold the rule of law …’’ Id. at 49.

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down the hierarchy of government. For example, attentat clauses fall short of the scope of the New York Convention, case law, and state practice. Fourth, an act with a transnational component is more likely to be characterized as assassination under international law than an intrastate act. The New York Convention’s failure to criminalize violent acts within home territories illustrates the deference shown to domestic competence in such matters. Fifth, legal prescriptions governing assassination yield to overriding political concerns. Since the criteria for assassination are ambiguous, states are likely to characterize a killing to suit their own purposes. This inability to identify an operational code demonstrates the contextual nature of the characterization of assassination. Finally, state-sponsored killings breach other domestic or international prescriptions in most cases, regardless of whether the acts technically constitute assassination. These acts constitute murder under domestic law, and probably violate international prohibitions on the use of force, such as Article 2(4) of the UN Charter. Simply because a killing is not assassination does not mean that it is legal, or even justified.

7.4 Contemporary Prohibitions under the Law of Armed Conflict Modern concepts of assassination follow their historical predecessors by primarily confronting the problem in the context of armed conflict. Prohibitions of assassination under the laws of war suffer the same defect, lack of definitional clarity, as is found in peacetime prohibitions. Yet the attempts to establish operational codes under the laws of war provide specific elements that are essential to a modern understanding of assassination.

7.4.1 From General Order 100 to the Oxford Manual It was not until the nineteenth century that any state attempted to formalize a prohibition on assassination under the laws of war.88 This attempt originated 88

According to J.M. Spaight, China appears to be the solitary civilized nation which has countenanced the methods of the assassin in modern war. In her war with Japan, Sung, Imperial Commissioner, is stated to have posted notices in Northern Manchuria, offering 10,000 taels for the decapitation of three Japanese generals. Other wars furnish instances of assassination or attempted assassination, but in no case can the practice be proved to have been authorised by the Government or its commanders-in the field.

Spaight 1911, p. 86 (footnotes omitted).

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during the Civil War in the work of Francis Lieber, a professor at Columbia College. The result of his work, the Lieber Code, was subsequently reviewed and revised by a board of military officers and promulgated as General Order 100 by President Lincoln in 1863.89 Article 148 of that order presented the first formal ban on assassination: The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.90

While General Order 100 clearly prohibited assassination, the precise definition of the term was unclear. Despite this lack of clarity, modern codification efforts, like their historical counterparts, retained the concept of treachery as the linchpin of assassination. General Order 100 did not create a new category; instead, as will be seen, it merely attempted to include ‘‘outlawry’’ as a form of treachery. In addition, although General Order 100 was binding only on members of the US military, it was influential in subsequent codification attempts. A similar effort took place during the Brussels Conference of 1874. Convened by Czar Alexander II of Russia, representatives of European nations met to consider a law of war convention prepared by the Russians. The proposed convention was adopted with only minor revisions, but was never ratified.91 Nevertheless, the Brussels Declaration represents an important link in the evolution from the historical writings to current wartime assassination prohibitions, as the Declaration outlawed ‘‘[m]urder by treachery of individuals belonging to the hostile nation or army.’’92 The Brussels Declaration influenced the work of the International Law Institute. Founded in 1873 to foster codification of international legal principles, the Institute adopted a manual on the law of war, the Oxford Manual, in 1880.93 Its author, Gustave Moynier, used the Brussels Declaration as a guide, by prohibiting any ‘‘treacherous attempt on the life of an enemy.’’94

89 Schindler and Toman 1973b; see also Hartigan 1983, pp. 1–26; Davis 1907; Nys 1911; Root 1913. 90 General Orders No. 100, April 24, 1863, Article 148 [hereinafter General Order 100], reprinted in Schindler and Toman 1973c, at 3. 91 Schindler and Toman 1973a, at 3. 92 Project of an International Declaration Concerning the Law and Customs of War, August 27, 1874, Article 13 [hereinafter Brussels Declaration] reprinted in 1 Am. J. lnt’l L. 96 (Supp. 1907). 93 The Laws of War on Land (1880) (UK) [hereinafter Oxford Manual], reprinted in Schindler and Toman 1973c, at 35. 94 Id. Article 8.

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7.4.2 Hague IV and the Protocols Additional to the Geneva Conventions In 1899, Russia convened the First Hague Peace Conference with the goal of revising the Brussels Declaration, which carried forward the standard prohibition on assassination in the form defined by General Order 100, the Brussels Declaration, and the Oxford Manual. The Conference produced the Convention on Land Warfare and a set of attached regulations.95 This Convention subsequently was revised at the Second Hague Peace Conference in 1907, now almost universally ratified as the Hague IV Convention and its annexed Regulations Respecting the Laws and Customs of War on Land.96 Since its promulgation, Hague IV has achieved the status of customary international law, a fact acknowledged by the Nuremberg International Military Tribunal in 194697 and by contemporary manuals on the law of war.98 The implementation of the Hague Regulations at the national level finally made explicit the relationship between assassination and treachery. General Order 100 outlawed assassination but failed to mention treachery. Subsequent codification efforts focused on the issue of treachery without specifically citing assassination. Article 23(b) of the Hague Regulations, however, provides that ‘‘it is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army.’’99 Lest there be any doubt that the Hague Regulations apply to acts of assassination, the current US Army manual, The Law of Land Warfare (Army Manual), explicitly interprets Article 23(b) to so apply.100 Other manuals on the law of war took a similar approach. For example, the most recent codification effort, conducted under the auspices of the International Committee of the Red Cross (lCRC), produced the 1977 Protocols Additional to

95

Convention (II) with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, T.S. No. 403, reprinted in Schindler and Toman 1973c, at 57; see also Holland 1904. 96 Hague IV, supra note 7. 97 ‘‘[B]y 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war …’’ International Military Tribunal (Nuremberg), Judgment and Sentences (October 1, 1946), reprinted in 41 Am. J. Int L. 248–49 (Supp. 1947). 98 See, e.g., Navy Manual, supra note 19, § 5.14 n.16. 99 Hague IV, supra note 7, Article 23(b). 100 Article 31 of the manual reprints Article 23(d) of the Hague regulations. It then provides the following commentary: This article is construed as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘‘dead or alive.’’ It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere. Army Manual, supra note 19, Article 31.

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the Geneva Conventions of 12 August 1949.101 Protocol I retains the prohibition on assassination in slightly modified form. Article 37 states: ‘‘It is prohibited to kill, injure or capture an adversary by resort to constitute perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.’’102 This provision was designed to incorporate the prohibitions contained in Article 23(b) of Hague IV.103 The evolution of the assassination standard through these codification efforts demonstrates that the prohibition should now be interpreted as the treacherous killing of one’s enemy.104

7.4.3 Domestic Manuals on the Law of War A survey of the manuals on the law of war also reveals that the wartime assassination ban in international agreements and scholarly commentary has entered the operational code. These manuals are an essential component in the implementation of armed conflict prescriptions. They are the best evidence, short of actual hostilities, of the boundaries of the operational code. These manuals have adopted the prohibitions set forth in international agreements almost verbatim. The US Army Manual, for example, directly incorporates Article 23(b) of Hague IV.105 The commentary to Article 31 of the Manual makes clear that the provision is intended to include assassination.106 The Air Force version, International Law—The Conduct of Armed Conflict and Air Operations (Air Force Manual), basically repeats this language.107 The Navy manual, The Commander’s Handbook on the Law of Naval Operations (Navy Manual), does not specifically address assassination. However, one can conclude that the Navy Manual similarly forbids assassination, since it proscribes perfidy, the rough 101 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977 [hereinafter Protocol 1]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (protocol 2), June 8, 1977 [hereinafter Protocol II], reprinted in 16 I.L.M. 1391 (1977); International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949 (1977) [hereinafter ICRC]. 102 Protocol I, supra note 101, Article 37. 103 International Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, § 1491 (1987) [hereinafter ICRC Commentary]; see also Bothe et al. 1982, pp. 202–203. 104 Although the US has not ratified the Protocols, it accepts this limitation. See Navy Manual, supra note 19, § 12.4 n.3. 105 Army Manual, supra note 19, Article 31. 106 Id. 107 Air Force Manual, supra note 19, } 8–6d.

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equivalent of treachery, and it recommends Protocol I’s prohibition.108 Foreign manuals contain similar assassination prohibitions.109

7.4.4 Some Conclusions: A Definition of Wartime Assassination It is possible to derive from these sources a definition of wartime assassination containing two elements: the targeting of an individual, and the use of treacherous means. An act committed during hostilities that meets these criteria is forbidden absolutely, regardless of motivation. Conversely, an act lacking either element, wrongful or not,110 does not amount to assassination, regardless of the identity of the target, the means employed or the requirements of necessity and proportionality that govern the use of force. 7.4.4.1 Targeting Individuals The first criterion derives from several sources. At the most basic level, assassination is not indiscriminate killing. All codification efforts attempted to define assassination as the targeting of specific individuals. For example, General Order 100 uses the phrases ‘‘an individual… a citizen… a subject… an outlaw.’’111 The Brussels Declaration speaks of ‘‘individuals,’’112 whereas the Oxford Manual forbids a treacherous attempt on the life of ‘‘an enemy.’’113 The Hague Regulations likewise employ the term ‘‘individuals,’’114 while Protocol I condemns the resort to perfidy against ‘‘an adversary.’’115 This textual evidence demonstrates the requirement of individual targeting.116 108

Navy Manual, supra note 19, § 12.1.2 and n.3. Additionally, in discussing basic principles of the law of armed conflict, the Navy Manual mentions treachery in the context of understanding the principle of chivalry. Id. § 5.2 and n.7. 109 The British version provides that ‘‘[a]ssassination, the killing or wounding of a selected individual behind the line of battle by enemy agents or partisans … and the killing or wounding by treachery of individuals belonging to the opposing nation or army, are not lawful acts of war.’’ War Office, the Law of War on Land, Being Part III of the Manual of Military Law Article 115 (1958) (UK) [hereinafter British Manual], reprinted in 10 DIG. Int L. 390 (1968). 110 For example, although making civilians the object of attack is wrongful under the laws of war, it is not assassination per se. 111 General Order 100, supra note 90, Article 148 (emphasis added). 112 Brussels Declaration, supra note 92, Article 13 (emphasis added). 113 Oxford Manual, supra note 93, Article 8(b). 114 Hague IV, supra note 7, Article 23(b). 115 Protocol I, supra note 101, Article 37. 116 The existence of separate restrictions on perfidy in Article 50 of the Army Manual also supports this conclusion. Army Manual, supra note 19, Article 50. The coexistence of Articles 31 and 50 suggests they have distinct meanings; the logical conclusion is that Article 31 covers individual perfidious killing, while Article 50 covers indiscriminate perfidious killing.

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7.4.4.2 Treachery Even more certainly required is the element of treachery, which historically was a critical component of assassination and is reiterated consistently in codifications of the law of war.117 It is the key feature of wartime assassination today. The essence of treachery is a breach of confidence. For instance, an attack on an individual who justifiably believes he has nothing to fear from the assailant is treachery.118 The requirement of treachery is not found in peacetime prohibitions on assassination, however. Indeed, the means employed to kill one’s victim in peacetime are only marginally relevant, as it is primarily the political motivation that defines that offense.119

Rationales This distinction is critical. The wartime ban, unlike its peacetime counter-part, is not designed to protect particular categories of individuals.120 The law of armed conflict achieves this result by differentiating between combatants and noncombatants, not by banning assassination. The law of armed conflict ban serves two other essential functions. First, it keeps war orderly and predictable, which contributes to the manageability of conflict. Although seemingly contradictory, an element of trust must exist between parties in war on certain basic matters. Wartime assassination, due to its treacherous nature, encourages a sense of paranoia that inevitably leads to excesses and hinders the possibility of negotiations.121 Second, the ban is humanitarian. Noncombatants enjoy protected status under the law of armed conflict. Abusing that status can lead to a dangerous unraveling

117

According to the British Manual, for example, the prohibition on assassination ‘‘applies only to treacherous killing.’’ British Manual, supra note 109, Article 115 cmt. 118 J.M. Spaight notes that ‘‘[i]t is the essence of treachery that the offender assumes a false character by which he deceives his enemy and thereby is able to effect a hostile act which, had he come under his true colours, he could not have done. He takes advantage of his enemy’s reliance on his honour.’’ Spaight 1911, at 87. 119 See supra notes 60–63 and accompanying text. 120 The peacetime prohibition serves to protect individuals involved in international affairs. In other words, the ban is a recognition that the death of specific individuals will upset stability in the international system. The war prohibition focuses on the method used to kill, not on the legitimacy of the target. 121 Even unconditional surrender requires negotiations; only total destruction of the state would foreclose the need for them. In light of modern weaponry, such as chemical munitions, a strategy of total destruction would seem foolhardy. One objective of any campaign must be to avoid driving the enemy to act irrationally.

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of the standards of conduct, a phenomenon illustrated by the My Lai massacre.122 Once the line between combatants and noncombatants begins to blur, self-preservation dictates a presumption in favor of combatant status in questionable cases.123 The assassination prohibition, like the more general restriction on perfidy, is designed to brighten the line.

Examples These two rationales permit an evaluation of the ban in concrete situations. It is necessary to observe that surprise alone can never constitute assassination.124 An enemy has no right to believe he is free from attack without prior notice. Thus, had the Abu Jibad affair occurred in the context of warfare without the issues of sovereignty and territoriality, the Israeli action may have been acceptable, for the commando team was in uniform at the time of the assault.125 Similarly, the use of aircraft to kill a specific individual would not constitute assassination unless those aircraft were improperly marked with protective, for example medical, symbols. The same analysis applies to naval vessels. The prohibition on treachery does not require attackers to meet their victim face to face. Thus, a special forces team may legitimately place a bomb in the residence of its target or shoot him from a camouflaged position. Such actions do not involve misuse of protected status, and so involve no perfidy. What would violate the ban? Article 37 of Protocol I offers four examples of perfidy that would clearly amount to treachery if used to kill a specific individual: (1) feigning a desire to negotiate under a truce or surrender flag; (2) feigning incapacitation by wounds or sickness; (3) feigning civilian, non-combatant status; 122

US v. Calley, 22 C.M.A. 534, 48 C.M.R. 19 (1973). In the My Lai incident, Lt. Calley had received intelligence reports that no civilians were in the area. Calley argued that the subsequent killing of civilians, including children, did not evidence the degree of malice or mens rea requisite for murder. 22 C.M.A. at 539, 48 C.M.R. at 24. The court ruled that even if the victims had been enemy soldiers, killing unresisting prisoners is prohibited. 22 C.M.A. at 540, 48 C.M.R. at 25. Nonetheless, the affair aptly illustrates the dangers posed by blurring the distinctions between combatants and noncombatants. 123 This presumption refers to actual engagements of the enemy; they are distinguishable from situations involving capture and the according of prisoner-of-war status. Article 45 of Protocol I provides for a presumption of prisoner-of-war status in the case of doubt. Protocol I, supra note 101, Article 45. The US supports this position. See Matheson 1987, p. 425. 124 See, e.g., Spaight 1911, at 88; Parks 1989, at 5. The comments to the British Manual’s article on assassination states that ‘‘[i]t is not forbidden to send a detachment or individual members of the armed forces to kill, by sudden attack, members or a member of the enemy armed forces.’’ British Manual, supra note 109, Article 115 cmt. 125 In the comments to Article 115 of the British Manual, the 1943 commando raid on Rommel’s African Army at Beda Littoria was cited as an example of an operation permissible under the assassination ban. These comments reason that the commandos were in military uniform and that the operation was intended to seize the enemy headquarters and capture or kill enemy personnel. British Manual, supra note 109, Article 115 cmt.

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and (4) feigning protected status by the use of signs, emblems or uniforms of the UN, neutral states, or other states not party to the conflict.126 Thus, if the Iraqi officers surrendering to General Schwartzkopf in the Gulf War had killed him during negotiations, the act would have amounted to assassination. Likewise, if they had left a bomb in the tent, the surrender would have constituted a treacherous subterfuge for the purpose of assassinating the general. Offering bounty or a reward for the death of one’s enemy is also regarded as treacherous. The Army Manual and Air Force Manual explicitly cite this prohibition.127 Although absent in Hague IV, the prohibition was included in the Oxford Manual as an example of treachery.128 Offering rewards for assassination was also prohibited in General Order 100.129 Since General Order 100 and the Oxford Manual both served as models for Hague IV, the prohibition must be understood as retaining validity.

Civilian Clothes, Irregulars, and Wearing the Enemy’s Uniform A more troublesome issue is whether plainclothes actors can target an individual without acting treacherously. Soldiers are obliged to wear uniforms to distinguish them from civilians protected by noncombatant status.130 Hence, engaging the enemy while disguised in civilian clothes constitutes perfidy. Protocol I and the manuals on the law of armed conflict select precisely this act to illustrate

126

Protocol I, supra note 101, Article 37. Army Manual, supra note 19, Article 31; Air Force Manual, supra note 19, } 8–6d. The British Manual also prohibits the offering of bounties. ‘‘In view of the prohibition of assassination, the proscription or outlawing or the putting of a price on the head of an enemy individual or any offer for an enemy ‘dead or alive’ is forbidden.’’ British Manual, supra note 109, Article 116. Perceptively, the Manual indicates that this prohibition is driven less by a concern that assassination may be encouraged than by a belief that the offer of rewards would create a tendency to deny quarter. Id. Article 116 cmt. The Hague regulations specifically forbid denying quarter. Hague IV, supra note 7, Article 23(d). 128 ‘‘It is forbidden … to make treacherous attempts upon the life of an enemy; as, for example, by keeping assassins in pay or by feigning to surrender …’’ Oxford Manual, supra note 93, Article 8(b). 129 General Order 100, supra note 90, Article 148. 130 Aircrews, however, are not technically required to wear uniforms since the markings on the aircraft suffice to place others on notice of their combatant status. Nevertheless, US policy requires Air Force personnel to wear uniforms for their own protection in the event they are shot down. Air Force Manual, supra note 19, } 7–3a. 127

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perfidy.131 Moreover, attacking the enemy disguised as a civilian is a war crime,132 and those captured out of uniform risk losing prisoner-of-war status.133 A member of the armed forces who kills a targeted individual while intentionally out of uniform arguably has committed an act of assassination.134 The same conclusion relates to those wearing the enemy’s uniform.135 The prohibition against wearing the garb of one’s opponent, codified in Article 23(f) of the Hague Regulations, applies only to combat situations, however. Wearing an enemy uniform, or even using the enemy flag, prior to or following battle is not necessarily restricted.136 Interestingly, Article 23(f) does not specifically make the timing distinction; yet when disputes arose during the Second World War concerning its meaning, direct involvement in combat was the determinative factor.137 Article 39(2) of Protocol I confused the matter. The article ‘‘prohibited [the] use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favor, protect or impede military operations.’’138 Protocol I, therefore, discards the post-World War II understanding, and would forbid ingress to or egress from the area of operations by those wearing the enemy’s uniform. The US opposes Article 39 as non-reflective of the nature of modern combat139; and US enemies are likely to employ this mode of deception

131

See, e.g., Protocol I, supra note 101, Article 37.1(c); Air Force Manual, supra note 19, } 8– 6a(3); Navy Manual, supra note 19, § 12.7. The commentary to Protocol I indicates that this example was selected because it was indisputable. ICRC Commentary, supra note 103, }} 1501– 05; see also Bothe et al. 1982, at 205; International Comm. of the Red Cross, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 105 (1971). 132 Navy Manual, supra note 19, § 12.7. 133 See, e.g., Army Manual, supra note 19, Article 74; Air Force Manual, supra note 19, } 7–2; see also Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, Article 4, 6 U.S.T. 3316, 3320, 75 U.N.T.S. 135, 139 [hereinafter Geneva III]. 134 State practice, however, does not always follow this standard. Parks observes that in World War II a British officer was decorated for using civilian clothing to infiltrate German headquarters to kill a general. Parks 1989, at 6. 135 See Jobst III 1941. 136 The general rule, however, is the following: ‘‘it is especially forbidden to make improper use of a flag of truce, of the national flag, or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention.’’ Hague IV, supra note 7, Article 23(t); see also Army Manual, supra note 19, Article 54; Air Force Manual, supra note 19, } 8–6c; Navy Manual, supra note 19, § 12.5.3. 137 Air Force Manual, supra note 19, } 8–6c; Navy Manual, supra note 19, § 12.5.3 n.15; Bothe et al. 1982, at 212–215. In Trial of Skorzeny and Others, a military court held that soldiers wearing enemy uniforms could not be tried as war criminals unless they had engaged the enemy. 9 W.C.R. 90, 93–94 (US Zone-Germany, Gen. Mil. Gov. Ct. 1941). Standards for improper use of uniforms, however, differ in regard to prisoners entitled to prisoner of war status. 138 Protocol I, supra note 101, Article 39(2) (emphasis added). 139 See Matheson 1987, at 425, 435. Matheson was Deputy Legal Adviser at the State Department when he made the comments.

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regardless of the prohibition in Article 39.140 Accordingly, the US resists compliance as disadvantageous.141 In light of contrary state practice, Article 39 is not binding on non-signatories and does not supplant the timing distinction developed in the post-war era. The wearing of an enemy uniform or insignia for the purposes of getting to an operation location is therefore legitimate. Wearing the enemy’s uniform is treacherous only if an attack is executed while the enemy uniform is worn. Using irregular forces, such as guerrillas, to carry out attacks against specific individuals presents more difficult analytical problems. Article 1 of the Hague Regulations and Article 4 of the Geneva Convention on prisoners of war require that ‘‘militia and volunteer corps’’ wear a ‘‘fixed distinctive emblem recognizable at a distance’’ and ‘‘carry arms openly.’’142 In most cases, however, irregulars have ignored these requirements. Guerrillas seldom wear uniforms, for example. Though permitting irregulars to engage in combat without uniforms contradicts the general rule against treachery, state practice arguably has served a legitimizing function. Here, the rules of the operational code vary from the myth system. Some states have attempted to correct the discrepancy, as illustrated by the coordinated efforts of the US and the UK to amend their war manuals after World War II. With regard to assassination, the most important change was the revision of the Army Manual’s commentary to Article 31. Previously, it had simply listed acts that constituted treacherous killings. The current version contains the following caveat: ‘‘[the prohibition] does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.’’143 The inclusion of this caveat, as indicated in the annotation to the manual, was motivated by a desire ‘‘not to foreclose activity by resistance movements, paratroops, and other belligerents who may attack individual persons.’’144 Despite the problem posed by irregular soldiers, the basic standards relating to lawful combatant status set forth in the Hague Regulations have not been abandoned. The US opposition to relaxing the criteria in Protocol I demonstrates this. Article 44(3) of Protocol I grants an irregular combatant status, provided that he carries arms openly ‘‘(1) during each military engagement,’’ and ‘‘(2) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.’’145 Acts complying with these requirements are not perfidious under Protocol I.146 140

See, e.g., Dziak 1984, p. 95 (concerning spetsnaz operations). For further discussion of Article 39, see Roberts 1985, pp. 148–150; Aldrich 1986, pp. 711– 712. 142 Hague lV, supra note 7, Article 1; Geneva III, supra note 133, Article 4. 143 Army Manual, supra note 19, Article 31. 144 Parks 1989, at 6. The annotation, however, should not be read too broadly. It was designed to recognize the existence of partisan activity in modern warfare; it was not, however, intended to dispense with all requirements for distinguishing combatants from noncombatants. 145 Protocol I, supra note 101, Article 44(3). 146 Id. 141

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The change reflects the concern that in modern armed conflict combatants may not always be able to distinguish themselves from noncombatants.147 The US, however, understandably attacked the provision as contrary to the primary goal of securing the protection of noncombatants.148 This uncertainty presents substantial problems in applying the assassination ban. Even those opposing Article 39 have recognized the need for relaxing some of the rules. At the same time, opposition to the article demonstrates that the norm it expresses is insufficiently accepted to constitute a binding prescription.149 The question, then, is what acts constitute treachery on the part of irregulars under current law. One approach focuses on the motive for wearing civilian clothing and on the reasonableness of the target’s belief that he is free from risk of attack. The inquiry would determine whether irregulars don civilian clothing for the purpose of avoiding detection or for deceiving the target into believing he has nothing to fear. The former case would not be treachery; the latter probably would.150 This standard derives from the historical understanding of treachery. Although the standard is a difficult one to apply, a few illustrations help to elucidate it. Wearing civilian clothing to pass through a populated area prior to an attack, for example, might be an acceptable practice. Since the operation does not yet involve focusing on the target, he has no reason to vest ‘‘confidence’’ in those conspiring against him. Similarly, wearing civilian clothing in an ambush does not violate the standard because the target is unaware of the assailants. By contrast, irregulars commit treachery if they use their apparent noncombatant status to get closer to the target than they otherwise would. If they wear civilian dress in a crowd to facilitate movements upon a target, they take advantage of the target’s perception that he is surrounded by harmless noncombatants.

147

Id. This justification is contained in the text of the article itself. Sofaer 1987, p. 463. 149 Interestingly, the ICRC draft listed the ‘‘disguising of combatants in civilian clothing’’ as an example of perfidy under Article 37. However, the phrase was removed in response to concerns that it contradicted the more relaxed requirements relating to irregulars of Article 44. Bothe et al. 1982, at 205. 150 One assertion supporting this approach comes in a comment on the Protocol I prohibition on perfidy. According to Bothe, Partsch, and Solf, a breach of Article 37 requires the act of perfidy to be the proximate cause of the killing. Remote causal links are insufficient. Bothe et al. 1982, at 204. In the same way, the suggested standard imposes a requirement analogous to proximate cause. An interesting case involved the 1942 killing of S.S. General Reinhard Heydrich en route to his office in Prague. Two Czech nationals had parachuted into Czechoslovakia from a British airplane with the specific mission of killing Heydrich. As his car slowed to round a turn, the men blew it up with a grenade. Heydrich was killed. One commentator characterizes the act as assassination because ‘‘[w]ith full knowledge of the country and the language, they were able, under the cloak of civilian clothing, to accomplish what a British battalion could not have done.’’ Kelly 1965, p. 104. He reasons from this incident that the restriction on killing while out of uniform should be relaxed. Id. at 111. The British Manual similarly characterized the act as assassination yet concluded that it was legal as a reprisal. British Manual, supra note 109, Article 115 cmt. 148

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The use of apparent noncombatant status to gain entry into a facility housing the target is likewise treachery. It is accordingly possible to make rough distinctions between treacherous and non-treacherous acts by irregulars. Treacherous acts violate a target’s belief that those around him pose no threat. Conversely, non-treacherous acts result in no immediate apprehension of attack beyond those caused by acceptable military operations. The distinction is roughly analogous to determinations of whether soldiers may lawfully wear enemy uniforms. For humanitarian reasons, however, a presumption should be that wearing civilian clothes in questionable cases is illegal.

7.4.4.3 Identity of the Target, Choice of Weapon, and Necessity and Proportionality The previous discussion has focused primarily on the actions of the ‘‘assassin’’ during wartime. As demonstrated earlier, the political motivation for the attack is relevant in peacetime. Yet there can be no similar criterion for wartime assassination. The reason for this, as Clausewitz accurately noted, is that warfare is simply a continuation of politics by other means. Those who kill to further their side’s war effort are thus necessarily politically motivated. If political motivation makes a killing during wartime an assassination, then all combat deaths would be assassinations. Clearly, this is not the meaning of assassination in either common usage or as used in the law of war. Although the victim’s status is relevant in peacetime, it is irrelevant during war. In a brief but incisive article, Mr. Hays Parks addressed this distinction in the context of assassination.151 His analysis offers an excellent guide for determining the legitimacy of targeting individuals. That a noncombatant cannot become the object of attack is undisputed. The prohibition has received universal recognition under international agreements and law of war manuals.152 It is a customary norm accepted by the US in the context of the Protocol I prohibition on targeting civilians.153 The confusion arises in treating wrongful killing and assassination as synonymous. Although every assassination is wrongful, not every wrongful killing is assassination. Article 148 of General Order 100 protects ‘‘a citizen or a subject of the hostile government,’’ in addition to military personnel.154 Similarly, both the Brussels Declaration and the Hague Regulations prohibit the treacherous murder of ‘‘individuals belonging to the hostile nation or army.’’155 The law of war

151

Parks 1989, at 6–7. See, e.g., Army Manual, supra note 19, Articles 25, 50; Navy Manual, supra note 19, § 11.2; Protocol I, supra note 101, Articles 51(2), 57(5). 153 Matheson 1987, at 426. 154 General Order 100, supra note 90, Article 148. 155 Brussels Declaration, supra note 92, Article 13: Hague IV, supra note 7, Article 23(b). 152

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manuals incorporate the prohibitions in these terms.156 Since these provisions cover civilians, assassination should hold the same meaning to them as it does for members of the armed forces. In this respect, a killing must be treacherous before it will be labeled assassination, regardless of the target’s status. The choice of weapon used to carry out an attack is also irrelevant. In the law of armed conflict, numerous restrictions apply to the type of weapons.157 To violate these limitations would be unlawful wholly apart from any ban on assassination. On the other hand, the use of illegal weapons would not necessarily render an act assassination. It might be argued that some weapons are treacherous in themselves.158 Treachery in the law of assassination, however, means the breach of confidence in status, not method. In executing an operation designed to kill a specific individual, planners will be constrained by international law on the use of certain weapons, but the choice of weapon will not qualify any act as an assassination. Similarly, the two major principles governing the use of force, necessity and proportionality, will restrict types of operations, but they will not affect determinations of assassination. The principle of necessity requires that any use of force contribute to the submission of the enemy as quickly as possible with the minimal expenditure of resources.159 Within the confines of necessity the goal is

156 See, e.g., Army Manual, supra note 19, Article 31. Note that the Army manual defines the term ‘‘enemy’’ to include ‘‘every national’’ of the state with which the US is at war. Id. Article 25. Thus, when the comment to Article 31 forbids ‘‘outlawry of an enemy,’’ civilians are included within its scope. 157 The prohibitions are both general and specific. The general restriction forbids combatants to employ weapons likely to cause ‘‘unnecessary suffering.’’ E.g., Hague IV, supra note 7, Article 23(e): Protocol I, supra note 101, Article 35(2): see also Bothe et al. 1982, at 197-98 (explaining omission by Protocol I of prohibitions on specific conventional weapons). Certain weapons and practices have been incorporated under the general ban by custom, including the use of irregularly shaped bullets, projectiles filled with glass, bullets coated with substances to inflame wounds, and scored or filed-off bullets. Hague IV, supra note 7, Article 34(b). Specific restrictions are contained in several international agreements. See, e.g., Declaration Renouncing the Use in Time of War of Explosive Projectiles Under 400 Grammes Weight, December 11, 1868, 138 Consol. T.S. 297, 1 AM. J. Int L. 95 (Supp. 1907): Convention with Respect to Laws and Customs of War on Land, July 29, 1899, 1 AM. J. Int L. 155 (Supp. 1907): Hague IV, supra note 7, Article 23(a) (prohibiting use of poison): Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, October 10, 1980, 19 I.L.M. 1523 (1980) (Protocol I covers nondetectable fragments: Protocol II covers mines, booby traps, and other devices: and Protocol III relates to incendiary weapons). 158 The use of poison, for instance, invariably involves treachery. 159 See Air Force Manual, supra note 19, } 1–3a(1): Navy Manual, supra note 19, § 5.2: Army Manual, supra note 19, Article 3: see also The Hostage Case (US v. List), 11 US Trials of War Criminals 1253–54 (1950) (describing principle of necessity): McDougal and Feliciano 1961, pp. 521–530: Dunbar 1952.

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self-evident: to destroy the enemy’s overall ability to wage war.160 In targeting an individual, necessity would ask: ‘‘What will the death of this individual accomplish?’’ The answer to this question would determine the legality of the operation. Even if the answer is ‘‘absolutely nothing,’’ however, the killing may not be assassination. Although illegal under the law of armed conflict as militarily unnecessary, it will not violate the ban on assassination in the absence of treachery. The second general principle governing the use of force, proportionality, consists of two very closely related requirements.161 First, the means selected to achieve the ‘‘necessary’’ objective must be proportional to the anticipated military goal. In this sense, proportionality complements the principle of necessity. More importantly, it expresses the concept of humanity, since by its terms the destruction and physical suffering caused may not be excessive in relation to the expected military gain.162 As with necessity, however, though a disproportionate operation violates international law, its degree of proportionality is not relevant to whether the act is an assassination.

160 Necessity may be evaluated on two levels. The first level requires that the operation contribute to the general war effort. Generally, an assassination mission with a military objective meets this requirement, since the goal is to defeat the enemy. The second level narrows the scope of the test to require necessity for particular missions. Evaluating compliance with the necessity requirement is clearly more problematic, particularly with regard to the targeting of individuals. 161 The branches of the US armed forces differ somewhat in their categorizations of the general principles governing military operations. The Air Force, for example, speaks in terms of military necessity, humanity, and chivalry. Humanity is said to be implicitly contained within the category of necessity; proportionality is characterized as but one component of humanity. Air Force Manual, supra note 19, } 1–3a. The Navy does not use the term ‘‘military necessity’’ in the same way and, in fact, labels the use of the term in the context described above ‘‘misleading.’’ Navy Manual, supra note 19, § 5.2 n.5. Instead, the Navy includes its discussion of military necessity in the section on defenses to war crimes. Id. § S6.2.5.6.2. Further, the Navy does not include a section on humanity, but rather operates along the traditional lines of necessity, proportionality, and chivalry. Id. § 5.2 and accompanying notes. 162 See Air Force Manual, supra note 19, } 1–3a(2); see also McDougal and Feliciano 1961, at 241–44. The Navy Manual describes the principle of proportionality as the following: ‘‘The employment of any kind or degree of force not required for the purpose of the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources, is prohibited.’’ Navy Manual, supra note 19, § 5.2. Obviously, necessity and proportionality are closely related. Perhaps the best way to distinguish them is to regard necessity as an issue of purpose and proportionality as one of methodology. However, the principles often will overlap. The principle of proportionality was first codified in Protocol I, supra note 101, Articles 51(S)(b), 57(2)(a)(iii). These articles prohibit operations that may ‘‘be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’’ Id. Article 57(2)(a)(iii). The language incorporates the principle of avoiding unnecessary suffering or superfluous injury.

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7.4.4.4 Guidelines for Understanding Assassination in the Law of Armed Conflict Based upon the previous discussion, it is possible to offer the following guidelines for understanding assassination in the law of armed conflict: 1. Assassination is the treacherous killing of a targeted individual. 2. Treachery involves feigning protected status or financially encouraging the killing of a specific individual. In particular, military personnel may not wear civilian attire to execute their mission, and though the wearing of enemy uniforms is generally permissible, it is not legitimate for executing attacks. 3. The standards for irregulars are uncertain. However, given the rationales underlying the requirement of treachery in assassination, using noncombatant status to deceive a target into a false sense of safety probably constitutes treachery. 4. The distinction between combatants and noncombatants has no bearing on whether an act is assassination. Nevertheless, operations that target noncombatants will almost certainly violate other provisions of the law of armed conflict. 5. The choice of weapon is not relevant in determining whether an act is assassination. The use of an unlawful weapon, however, generally will violate other provisions of the law of armed conflict. 6. The principles of necessity and proportionality will govern operations targeting individuals. Violation of either principle alone, however, will not render an act assassination.

7.5 Applying the Proper Corpus of Law As noted in the introduction, in those few instances when scholars have evaluated the law of assassination, they have tended to apply rather arbitrarily derived prescriptions to various situations in order to determine whether targeting specific individuals violates the ban. It should be apparent from the preceding discussion that this approach is fundamentally flawed. Textual purity does not drive legality in this area; intentions and techniques do. Nevertheless, it is possible to posit very generalized conclusions as to which situations are likely to violate the ban, either under international or domestic law.

7.5.1 When the Law of Armed Conflict Governs The foregoing survey of the legal status of assassination during both peacetime and wartime is not very useful without a method for determining when the law of

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armed conflict governs. This determination turns on whether the hostilities rise to the level of ‘‘armed conflict,’’ and whether the conflict is of an ‘‘international’’ or ‘‘non-international’’ character. The law of armed conflict clearly will apply to an armed, international conflict. As a matter of policy, however, the international/ non-international distinction has no bearing on US operations, since the US maintains that the law of armed conflict governs hostilities regardless of the characterization of the conflict.163 It is generally accepted that internal disturbances are not armed conflict. The inapplicability of the law of armed conflict to these situations is recognized implicitly in the Geneva Conventions164 and explicitly in Protocol II thereto,165 and also in domestic manuals on the law of war.166 Internal disturbances include riots, isolated and sporadic acts of violence, and other related events, such as mass arrests.167 At the other end of the continuum, military engagement between the forces of two states is universally regarded as armed conflict. Classifying the grey areas—guerilla warfare or operations designed to combat terrorism—is more

163 Dep’t of Defense, Law of War Program (DoD Dir. 5200.77), November 5, 1974, para V.A. The international/non-international conflict distinction does apply to other states. For example, Protocol I applies only to international armed conflicts, whereas Protocol II covers all armed conflict. Protocol I, supra note 101, Article 1; Protocol II, supra note 101, Article 1. The four 1949 Geneva Conventions, with the exception of their common Article 3, apply only to international conflicts. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Convention on Wounded Armed Forces]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Sea Convention on Wounded Armed Forces]; Geneva III, supra note 133; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Convention on Civilian Persons]. Additionally, Hague IV contains a general participation clause, although the Nuremberg Tribunal later deemed the convention to be customary law. Hague IV, supra note 7, Article 2. 164 These conventions contain identical language in Article 3. See Convention on Wounded Armed Forces, supra note 163, Article 3; Sea Convention on Wounded Armed Forces, supra note 163, Article 3; Geneva III, supra note 133, Article 3; Convention on Civilian Persons, supra note 163, Article 3. 165 Protocol II, supra note 101, Article 1(2). 166 See, e.g., Navy Manual, supra note 19, § 5.1 n.3. 167 International Comm. of the Red Cross, Commentary on the Draft Additional Protocols to the Geneva Convention of August 12, 1949, at 133 (1973).

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difficult. Although this issue is beyond the scope of this chapter,168 it is critical in determining the applicable law of assassination. Due to the uncertainty in determining delimitation lines, the decision ultimately must be made at the policy level, with a presumption in favor of armed conflict to maximize humanitarian protections.169 Sometimes it will not matter which corpus of law governing assassination applies. For example, targeting a noncombatant in an armed conflict is illegal, regardless of whether treachery is used. On the other hand, if the hostilities do not rise to the level of an armed conflict, then targeting an individual who would qualify as a noncombatant during armed conflict will, if politically motivated, constitute assassination. Similarly, targeting someone meeting the criteria of a combatant in armed conflict, but whose death is not ‘‘necessary,’’ would be illegal. If it is not necessary in armed conflict, then short of armed conflict, the killing would probably be either political, and thus assassination, or random, and thus murder. Peacetime targeting of an individual qualifying as a combatant in armed conflict presents a dilemma. Is such targeting acceptable since it is analogous to wartime killing? Characterizing the conflict in this situation assumes political overtones, since a politically motivated killing in the absence of armed conflict would expose the targeting state to accusations of engaging in assassination. The best approach is to shift the focus from the level of conflict to the justification for the action. If the targeting state can justify the use of force under international law, and the targeted individual is engaged in an activity that would make him a combatant during armed conflict, then specifically directing an attack against him is acceptable. An obvious example is combatting terrorism. Whether terrorism amounts to armed conflict is disputable. If it does, then states can engage terrorists directly and individually. Even if it does not, states have a generally recognized right of self-

168 In the absence of contextually specific legal analysis, the following factors are relevant in determining whether the targeting of a specific individual will implicate the law of armed conflict:

1. The law of assassination, whether existing under the law of armed conflict or not, does not depend on right and wrong. It involves rules of conduct, not rules for allocating blame. Thus, in deciding whether the law of armed conflict is applicable, issues such as unlawful aggression are not relevant. 2. The relevant situation is more likely to be deemed armed conflict the greater the: a. b. c. d. e. f.

degree of international involvement or extent of international effect; organized character of the competing sides; extent of violence; similarity of the combat to traditional military operations; systematic (as opposed to sporadic) nature of the violence; and fundamental nature of the grievances.

Each of these factors moves the conflict away from the internal disturbances category cited in Protocol II and toward the law of armed conflict. 169 For an analysis of the applicability of the law of armed conflict to a ‘‘grey area case, see Reisman and Silk 1988.

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defense under international law, acknowledged in the UN Charter.170 Thus, if the targeted individual engages in activity that would qualify him as a combatant during an armed conflict, attacking him is legal. In summary, three phases of conflict require determinations of applicable law. In situations of internal disturbances, the law of armed conflict does not apply; determinations of assassination will depend on political motivations. At the other end of the spectrum are situations that clearly constitute armed conflict. The grey area between the extremes is more problematic. Other legal provisions covering related grounds, however, may alleviate the difficulty of determining assassination. The one exception involves individuals who would be legal targets in armed conflict. Yet the uncertainty involved in grey area situations makes it advisable to focus on the legal rationale underlying the operation in deciding whether to target individuals.

7.5.2 State-Sponsored Killings as Self-Defense In the aftermath of World War II’s devastation, a consensus emerged among the community of nations that law had to take a more active role in preventing the outbreak of war, rather than simply regulating its conduct. This principle was recognized in the development of the International Military Tribunals,171 and it was enshrined in the constitution designed to fashion the new world order, the UN Charter. The central provision, Article 2(4), reads as follows: ‘‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN.’’172 Additional constitutive, prescriptive, and hortatory declarations have echoed this principle.173 The architects of the UN designed the Security Council, representing the world’s five major military powers, to enforce the norm.174 At the same time, states recognized that effectively prohibiting the wrongful use of force was a still-distant goal. Therefore, they preserved the right to self-defense in Article 51 of the new Charter.175 Numerous

170

UN Charter Article 51. See Charter of the International Military Tribunal, Article 6(a), annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 39 Stat. 1544, 82 U.N.T.S. 280, reprinted in 39 AM. J. Int L. 257, 260 (Supp. 1945). 172 UN Charter Article 2, } 4. 173 See, e.g., Rio Treaty, supra note 50, Article 1; Declaration on Principles, supra note 51, pmbl. and princ. 1; Definition of Aggression, supra note 52, Article 1. 174 See UN Charter ch. VII. 175 Id. Article 51. 171

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international agreements have reaffirmed this right of self-defense since ratification of the UN Charter.176 When targeting a specific individual is based on a valid exercise of self-defense, killing that individual will rarely be considered assassination, regardless of the applicable law governing assassination. The international law of armed conflict will likely be deemed applicable. Self-defense as envisaged by the UN Charter is justified only in response to an armed attack.177 Hostilities activating Article 51 would almost certainly rise to the level of ‘‘armed conflict.’’ When hostilities fall within this category, the political motivation criterion is suspended and the issue becomes whether the killing was treacherous. In other words, the legality of killing is self-defense depends on how the individual is killed, and not on the specific motivation for the killing.

7.5.3 State-Sponsored Killing as Anticipatory Self-Defense Specifically targeting individuals in self-defense is not legally controversial. The controversy arises over the definition of self-defense. For example, the legal status of preemptive attacks as a form of self-defense remains uncertain. Anticipatory self-defense, however, serves an important deterrent function. Striking the first blow is often critical in military operations. The right to anticipatory self-defense makes the benefits of aggression less certain and less appealing. Despite these arguments, a number of reputable scholars have maintained that an attack must actually occur before Article 51 becomes operative.178 They generally base this assertion on the argument that the original Charter signatories intended to supplant customary self-defense norms and rely on new UN enforcement mechanisms for maintaining peace in an effort to minimize the overall use of force. Assuming that an aggressor violated the new prescription against the use of force, the combined might of the UN forces could dislodge and defeat him. The Charter security regime never materialized, at least not until very recently. Caught in the grip of the Cold War rivalry, the Security Council was rendered essentially impotent, thereby resulting in a broader use of Article 51.

176

See, e.g., Rio Treaty, supra note 50, Article 3; Declaration of Principles, supra note 53, princ. 1; North Atlantic Treaty, April 4, 1949, Article 5, 63 Stat. 2241, 34 U.N.T.S. 243; Treaty of Friendship, Cooperation and Mutual Assistance, October 10, 1955, Article 4, 219 U.N.T.S. 3 [hereinafter Warsaw Pact]. 177 UN Charter Article 51. For a narrow reading of the phrase ‘‘armed attack,’’ see Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 4, 93–94 (June 27). In this case, the International Court of Justice held that the provision of weapons or logistical or other support did not-amount to ‘‘armed attack’’ as envisioned in the Charter. Id. Therefore, US activities against Nicaragua were not justified as collective self-defense. 178 See, e.g., Badr 1980, pp. 21–25; Kunz 1947, p. 877.

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If anticipatory self-defense is justifiable, should the specific targeting of an individual for defensive reasons likewise be acceptable as a matter of law? Can, for example, a state under threat of attack target the enemy’s high command as the first blow in its preemptive strike? To complicate the hypothetical, assume that the strike alone would dissuade the (initial) aggressor or avert the once-imminent attack. Here, the killing would be the goal of the operation, not just a component in a larger general plan. The hypothetical presents an extreme case, but the preemptive strike certainly would be legitimate. The mere fact that a state strikes the first blow, indeed the only blow, does not alone render the act political if it is otherwise in self-defense. Further, if the situation is deemed to be armed conflict, then the only issue as to assassination is whether treachery was a component of the plan.

7.5.3.1 The Issue of Imminence Assuming that anticipatory self-defense does justify individual targeting, the next issue involves timing. The prevalent view of anticipatory defense maintains that the attack must be ‘‘imminent.’’ Secretary of State Daniel Webster provided the classic articulation of this standard during the famous Caroline incident in the nineteenth century. According to Webster, self-defense should ‘‘be confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’’179 Preparation alone is insufficient. The Nuremberg Tribunal later spoke approvingly of this principle.180 Determining the standard of imminence is critical. Should an attack itself be imminent before the right to self-defense vests? Or does imminence imply something other than the actual timing of the strike? Some believe in a high standard for imminence, reading the Caroline principle narrowly.181 A contextual analysis of each situation with the Charter and international law is necessary before coming to any definitive conclusions. Some cases support viewing the requirement as temporal, relating to the precise timing of the preemptive attack. For example, when a weaker state is threatening a stronger one, or when equal states threaten each other and the potential victim has time to take defensive measures, it is reasonable to require a state to hold off preemptive actions until the last minute, so as to allow the

179

Letter from Daniel Webster to Lord Ashburton (August 6, 1842), reprinted in Moore 1906 pp. 411, 412 (emphasis added). The Caroline incident involved a Canadian insurrection in 1837. After being defeated, the insurgents retreated into the US where they recruited and planned further operations. The Caroline was being used by the rebels. British troops crossed the border and destroyed the vessel. Britain justified the action on the grounds that the US was not enforcing its laws along the frontier and that the action was a legitimate exercise of self-defense. Moore 1906 at 409–411. 180 International Military Tribunal (Nuremberg), Judgment and Sentences, 41 Am. J. Int L. 172, 205 (1947). 181 See, e.g., Schachter 1984, pp. 1634–1635.

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maximum time for peaceful resolution of the dispute. The preference in international law for nonviolent resolutions supports such a requirement. Yet international law does not require states to risk destruction simply to allow possibly fruitless negotiations to continue. That international law even recognizes the principle of anticipatory self-defense illustrates this point. In such cases, the general rule against resorting to force yields to state rights to self-defense. Based on this analysis, imminence is a relative criterion. As defensive options become more limited or less likely to succeed, the acceptability of preemptive action increases. A weak state may be justified in acting sooner than a stronger one when facing an identical threat simply because it is at greater risk in having to wait. The greater the relative threat, the more likely preemptive actions are to be effective, and, therefore, the greater the justification for acting before the enemy can complete preparations and mount its aggressive attack. However, this type of analysis breaks down in considering unconventional hostilities such as terrorism. The US, for example, is much stronger than any terrorist group. By the criteria set forth above, the law should require the US to wait to react until the last moment before being attacked. Even without the possibility of successful negotiations, waiting will nevertheless give law enforcement operations more time to work. Thus, waiting furthers the purpose of avoiding resort to force. The nature of terrorist attacks, however, frustrates this analysis. Regardless of the relative strength of the terrorist group, a state that hesitates to act against terrorists may lose the opportunity to act at all. Terrorists are difficult to locate and to track. Moreover, since most operations generally are very secretive, particularly regarding the intended target, a state may not be able to mobilize reliable defenses for all potential locations of attack. Effectively protecting all US assets in Europe, for example, would be a task of insurmountable proportions. Thus, targeted states generally have only a limited ‘‘window of opportunity.’’ Unless international law requires the potential victim simply to suffer the attack, the proper standard for evaluating an anticipatory operation must be whether or not it occurred during the last possible window of opportunity. Hence, the appropriate question relates more to the correct timing of the preemptive strike than to the imminence of the attack that animates it. Anticipatory self-defense is meaningless without this standard.

7.5.3.2 Evaluating the Threat to the State What if the threat lacks specificity? Assume, for instance, that a state’s intelligence sources have located the leaders of a particular hostile terrorist group at a place vulnerable to attack, but that reports indicate no specific future plans for terrorist acts. Can the state target these individuals? The state would place its citizens at risk by taking no preemptive action. Yet attacking the group in the absence of a current threat has strong political overtones and may be deemed assassination under the operational code.

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The best solution is to avoid the either/or approach and instead focus on the likelihood of future attacks. This approach would comport with the doctrine of anticipatory self-defense in traditional situations. States seldom possess the war plans of their enemy to indicate the details of an imminent attack. Circumstantial evidence of intent may be sufficient, assuming acceptance of the anticipatory selfdefense doctrine, to justify action. This is a subjective determination made by the potential victim, and the resulting preemptive operation also would be evaluated subjectively. Of course, the indicia of terrorist attack will not necessarily match those in more traditional military operations. Terrorists do not mobilize reserves, cancel leaves, or mass forces. Nevertheless, some reliable indications can predict forthcoming attacks. States should not be prevented from acting in self-defense by targeting individual terrorists simply because the mode of conflict exists on a different level. Although specific indicators of attack are best left to intelligence experts, from a legal perspective four factors are particularly relevant in determining the reasonableness of a belief that the state will be attacked: a. Past Practices: Past practices of the terrorist organization must be reviewed to determine the extent to which a possible attack is consistent with those practices. Does a pause usually occur between attacks? If so, the fact that a prior attack has not recently occurred will not indicate that terrorist activities have stopped. On the other hand, if the particular group has been engaged in a nearly continuous stream of violence, a lull in that violence argues against the reasonableness of a preemptive strike. b. Motives: Does the group have articulated goals? If so, then the extent to which those goals have or have not been fulfilled will bear on the likelihood of future attacks. To what extent does the group have goals suggesting a long-term conflict with the target state? c. Current Context: Have contemporary events caused tensions between the state and the terrorists to become exacerbated or relaxed? Similarly, what is the current state of relations between the target state and those nations sponsoring the terrorist group? Further, to what extent is the target state currently vulnerable from either a security or political perspective? d. Preparatory Actions: Even though no intelligence is available indicating a planned attack, are activities underway that suggest that an operation is being planned? For example, has the group recently received weapons, made contact with sponsors, or dispersed its operatives? The more consistent the particular activities that the group conducts are with prior operations, the more likely a response is to be deemed reasonable. Assuming that a state concludes that a terrorist attack can reasonably be expected, individual terrorists would then become subject to targeting. If the terrorist group has never acted against the state, the analysis set forth above for anticipatory self-defense will apply. However, assume that the group has committed terrorism against the state and is expected to do so again in the future. In this scenario, the timing of the preemptive action relative to the expected attack

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is irrelevant, since the various terrorist acts may be regarded as part of a continuous operation. This characterization is analogous to the battle/war distinction. Once war has commenced, the initiation of each battle is not evaluated separately. The war may be aggressive under international law, but the battles per se would not. The same reasoning applies to terrorism. The situation is one of self-defense, not anticipatory self-defense. A tactic of targeting individuals merits no deviation from this general rule. In summary, a state generally may target those reasonably believed to represent a violent threat to it. If the attack has not occurred, the right to anticipate the attack arises at the point at which the threat can last be thwarted effectively. On the other hand, if the attack is continuing, the timing of the defensive action is irrelevant. It must be emphasized, however, that the previous discussion bears on the issue of assassination only with regard to the likelihood that a killing might indicate political motivation in non-armed-conflict circumstances. To the extent an action does not meet the standards of self-defense, it might be politically motivated, and therefore might be assassination. If the action is a valid exercise of self-defense, it is not (legally) politically motivated. Additionally, if an act in self-defense rises to the level of armed conflict, the only issue as to assassination is treachery.

7.5.4 Determining Political Motivation of State-Sponsored Killing in Non-Defensive Situations Whether non-defensive use of force against specific individuals is assassination is less certain. Under the law of armed conflict, the determination turns on the mechanics of each military operation. In peacetime, though, the self-defense analysis is instructive. The greater the acceptability of the use of force under international law, the less likely is the use of force to be deemed politically motivated. Self-defense is a good example, since it is widely regarded in the world community as legitimate. On the other hand, however, the less accepted a justification in the world community, the more suspect the operation. For instance, consider the targeting of a drug lord overseas. Despite the real threat of illegal drugs to states, drug imports do not constitute an armed attack as traditionally understood under the doctrine of self-defense. Perhaps a new variant of the self-defense doctrine can focus on the effects rather than the mode of the activity. Drugs obviously kill more Americans every year than terrorism, and drug lords are aware of the deadly nature of their trade. The argument may be compelling, but it has no basis in international law. Anti-drug operations involving individual targeting would likely be regarded as political, not as traditional selfdefense actions. The case of humanitarian intervention illustrates best the methods that states use to ascribe political motivations to uses of force. Numerous scholars and nations

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maintain that such intervention is impermissible.182 The general argument contends that all intervention using force will have political features.183 The rule against intervention, however, should not be extended to allow a state to abuse its citizens; the purpose of the rule is simply to prevent other states with ill motives from interfering. From a world order perspective, this approach is unacceptable. Its proponents fail to recognize that law is ultimately a balancing of interests. As a general rule a presumption against intervention makes sense, but surely that presumption is rebuttable in extreme cases. As Professor Reisman has argued: The advent of the UN neither terminated nor weakened the customary institution of humanitarian intervention. In terms of its substantive marrow, the Charter strengthened and extended humanitarian intervention, in that it confirmed the homocentric character of international law and set in motion a continuous authoritative process of articulating international human rights, reporting and deciding infractions, assessing the degree of aggregate realization of human rights, and appraising its own works.184

The strengthening of human rights norms since ratification of the Charter has enhanced the purposes expressed therein.185 Nevertheless, those who advocate humanitarian intervention under international law recognize that it is a doctrine liable to abuse.186 Accordingly, most proponents condition their support by requiring that intervention be free of political motivation. Intervention must be narrow in scope and limited in purpose, and it must comport with all international prescriptions governing the use of force. Unilateral humanitarian intervention is particularly suspect, and states not acting under the auspices of the UN or regional organizations must accordingly bear a higher standard of proof regarding their intentions.187 Some writers even argue that no political benefits may accrue to the intervening state.188

182

See, e.g., Erickson 1989, pp. 188–193; Schachter 1984, at 1629; Brownlie 1974, p. 218; Franck and Rodley 1973. 183 This view maintains that to the extent humanitarian intervention was permissible prior to 1945, UN Charter Article 2(4) put the doctrine to rest. This highlights the concern over political motivation, for the article outlaws the use of force against the ‘‘territorial integrity or political independence of any state.’’ UN Charter Articles 2, 14. 184 Reisman 1973. For additional arguments that humanitarian intervention is legal under international law, see Ganji 1962; Tesón 1988. 185 See, e.g., African Charter on Human and Peoples’ Rights (Banjul Charter), Article 4, 21 I.L.M. 58 (1982) (‘‘Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person.’’); American Declaration of the Rights and Duties of Man, supra note 54 (‘‘Every human being has the right to life, liberty and security of his person.’’); Universal Declaration of Human Rights, supra note 54 (‘‘Everyone has the right to life, liberty and security of person.’’). Of particular importance is the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 54. 186 The presumption in international law against intervention implicitly reflects concerns over abuse of force. See, e.g., UN Charter Article 2, 17; Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 4, 106–10 (June 27). 187 Reisman 1973, at 193. 188 Harff 1984.

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Under both approaches, the political factor looms large, and individual targeting will always receive much scrutiny. The acceptance of forceful intervention for humanitarian purposes demonstrates that targeting particular individuals may not, in certain circumstances, amount to assassination. The assertion presumes that hostilities between the intervenor and the offending state are underway or inevitable. If hostilities are underway, norms of the law of armed conflict will apply. If they are merely anticipated, however, targeting will be acceptable only in the absence of political motivations. Since the doctrine of humanitarian intervention lacks universal support, targeted killings run a high risk of being labeled assassination. Policymakers and planners must be very sensitive to the factors outlined above. In a classic armed conflict, individual targeting is less an issue of assassination than it is of determining the lawful target. A similar conclusion results in a traditional self-defense operation following an aggressive attack. However, most states intending to target an individual usually act first. Their initial use of force is less likely to be evaluated by the standards of armed conflict and more likely to be judged as politically motivated. Consequently as the acceptability of the use of force becomes less certain under international law, individual targeting becomes the subject of increasing controversy.

7.6 Domestic Prohibitions The US is bound by domestic as well as international prohibitions of assassination. These domestic restrictions are promulgated by the Executive Branch. Executive Order 12,333, the current directive, is the third since 1976. It provides that ‘‘[n]o person employed by or acting on behalf of the US Government shall engage in, or conspire to engage in, assassination’’ and that ‘‘[n]o agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.’’189 This seemingly straightforward instruction is replete with uncertainty. What precisely does assassination mean? Does the term focus on the motive or the method of an act? What potential targets does it protect? What constitutes participation? Would aiding a coup that might result in the death of the over-thrown leader be prohibited, or does the executive order apply only to situations where the leader’s death is an explicit objective? Executive Order 12,333 itself offers little guidance on these questions. Unlike legislation, the order contains no definitional section. The sections cited above are the only ones that mention assassination in Executive Order 12,333, a lengthy document that addresses the broader subject of constraints on intelligence agencies. Dispelling the order’s uncertainty requires a review of the context in which it arose. The motives for its promulgation may suggest the scope of the prohibition. In addition, analyzing the order’s past application will yield insights as to its current role in the operational code—its meaning has possibly evolved over time. 189

Exec. Order No. 12,333, 3 C.F.R. 200, 213 (1981), reprinted in 5O U.S.C.A. § 401 (West 1981).

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7.6.1 The Church Committee Investigations The domestic ban on assassination can be traced to the congressional investigations conducted in the mid-1970s into CIA activities.190 These hearings resulted from revelations that the Agency had engaged in rather sinister operations in the past, particularly in the 1960s. These questionable operations included encouragement and direct participation in assassination attempts. Under the guidance of Senator Frank Church, the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (the Church Committee) explored the American intelligence community’s involvement in assassination. Its work culminated in a comprehensive report.191 The Committee investigated five operations at length. Since exploring the nature of the activities revealed to the public will help explain the rationale behind the executive orders, a brief review of the operations is appropriate.192

7.6.1.1 Patrice Lumumba In the fall of 1960, the CIA began plotting against Patrice Lumumba, Premier of the newly independent Congo (Zaire). The country was then embroiled in a civil war with Cold War implications.193 President Eisenhower expressed his concern over the situation in the Congo, particularly over Lumumba, at a National Security

190 U.S. Intelligence Agencies and Activities: Hearings Before the House Select Comm. on Intelligence, 94th Cong., 1st and 2d Session, pts. 1–6 (1975-76); Intelligence Activities-Senate Res. 21: Hearings Before the Senate Select Comm. to Study Government Operations with Respect to Intelligence Activities, 94th Cong., 1st Session, vols. 1–7 (1975). 191 Alleged Assassination Plots Involving Foreign Leaders, an Interim Report of the Senate Select Commitee to Study Governmental Operations with Respect to Intelligence Operations, 94th Cong., 1st Session 1 (1975) [hereinafter Church Report]. 192 In addition to the operations discussed in the text, evidence suggests that the CIA considered the assassination of President Sukarno of Indonesia. However, the planning got only as far as identifying a potential assassin. The Agency also provided arms to opponents of ‘‘Papa Doc’’ Duvalier in Haiti. Although it planned no assassination, the CIA understood that the Haitian leader might be killed in the coup attempt. Id. at 4 n.l. 193 There was concern that Lumumba might be a leftist. The Leopoldville station chief expressed this concern in a cable to the CIA Director:

Embassy and station believe Congo experiencing classic communist effort takeover government. Many forces at work here: Soviets …Communist Party, etc. Although difficult determine major influencing factors to predict outcome struggle for power, decisive period not far off. Whether or not Lumumba actually commie or just playing commie game to assist his solidifying power, anti-West forces rapidly increasing power Congo and there may be little time left in which [sic] take action to avoid another Cuba. Cable from Leopoldville CIA Station Chief to Allen Dulles, Director of Central Intelligence (August 18, 1960), reprinted in Church Report, supra note 191, at 14.

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Council meeting in August. Allen Dulles, the Director of Central Intelligence, took those comments as authority to plan and carry out Lumumba’s assassination, though it is not certain that President Eisenhower actually intended this result.194 Soon thereafter, the CIA station chief in Leopoldville initiated discussions with an individual selected to infiltrate Lumumba’s entourage. Among the methods contemplated for killing Lumumba was the use of a biological poison that could be placed in food or toothpaste. The CIA sent poisons to the Congo and took some initial steps to gain access to Lumumba. Before the assassination attempt was executed, however, a rival Congolese faction killed Lumumba.195 Interestingly, UN peacekeeping forces were in the country trying to reestablish order during the planning of the assassination, and at one point Lumumba actually sought refuge with UN troops.196 Nevertheless, the assassination plot proceeded.197

7.6.1.2 Fidel Castro The CIA was involved in a minimum of eight plots to assassinate Cuban dictator Fidel Castro between 1960 and 1965.198 In an early attempt, the CIA retained a Cuban to ‘‘arrange an accident’’ in exchange for $10,000 and a promise to educate his son in the event he died during the operation. The scheme dissolved when the Cuban reported that the opportunity to execute his plan never materialized. A second effort to kill Castro involved cigars treated with a powerful botulinum toxin. The cigars were prepared and delivered to Cuba, but it is not certain that CIA agents ever tried to get Castro to smoke one.199 These early failures prompted the CIA to hire professionals. It contacted underworld figure John Rosselli, who agreed to help assassinate Castro.200 The Technical Services Division at the CIA subsequently prepared dissolving poison pills for Rosselli which were to be placed in Castro’s drink by a highly placed 194

Church Report, supra note 191, at 13. However, some testimony contradicted the conclusion that Eisenhower desired the assassination of Lumumba. Id. Nevertheless, it is clear that Dulles did desire the assassination. Id. at 52. 195 Id. at 4, 28. 196 For a discussion of the UN operation, see UN Dep’t of Pub. lnfo. 1985, pp. 215–217. 197 Church Report, supra note 191, at 30. 198 The operations against Castro actually began with efforts to humiliate him publicly, not with assassination plots. The CIA mounted an operation to diminish his stature by embarrassing him during public speeches. One plan involved spraying his broadcasting studio with a chemical similar to LSD, but it fell through when the drug proved unreliable. Another involved filling cigars with a disorienting drug in the hope that Castro would smoke one prior to delivering a speech. Probably the most creative plot called for dusting his shoes with a strong depilatory at a hotel during a trip abroad. The chemical would cause his beard to fall out, thus destroying his image as ‘‘The Beard.’’ The plot collapsed when Castro canceled his trip. Id. at 72. 199 Id. at 73. 200 According to testimony, Rosselli was ‘‘very hesitant about participating in the project,’’ but finally agreed to because he felt he had ‘‘an obligation to his government.’’ Id. at 76.

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Cuban official with gambling debts owed to Rosselli. This operation failed when the official lost his governmental position, and thus his access to the Cuban leader. A later plan to employ the poison at a restaurant was foiled when Castro stopped frequenting the locale.201 At this point, the Bay of Pigs invasion intervened. Despite the operation’s failure, efforts to kill Castro were subsequently redoubled. The Agency again formulated plans for poisoning him, but none came to fruition. Frustrated, the CIA reached new heights of creativity—and absurdity. In 1963 two incredible plots were concocted. In one, an exotic seashell was rigged to explode as Castro, a devoted diver, swam over it. The CIA eventually rejected that plot as ‘‘impractical.’’ In another plan, the Technical Services Division treated a diving suit with a fungus that would cause a chronic skin disease. As an added measure, the regulator was contaminated with tubercula bacillus. Other plots involved high-powered rifles and a ball point pen rigged with a hypodermic needle so fine that the victim would be unaware of penetration. All failed.202 Ultimately, the Church Committee found insufficient evidence to implicate the Presidents in power during the operations—Eisenhower, Kennedy, and Johnson. It remains unclear whether the Director of Central Intelligence, Allen Dulles, knew of the plots, although some evidence suggests that he did. Apparently, his successor, John McCone, did not. The efforts were not renegade operations, however, for other senior CIA officials, including the Deputy Director for Plans, knew of and approved the plans.203

7.6.1.3 Rafael Trujillo Both the Kennedy and the Eisenhower administrations opposed Rafael Trujillo, the dictator of the Dominican Republic, fearing that his policies would result in a revolution like Cuba’s. The US supported a dissident group that hoped to overthrow Trujillo, and which the US government officials knew intended to assassinate him. The US provided arms to the group that subsequently assassinated Trujillo.204 The Church Committee never established whether the CIA supplied the arms with the knowledge that they would be used in an assassination attempt. Nor did the Committee determine whether the arms were actually used in killing Trujillo in May 1961. However, the day before Trujillo’s death, a cable personally authorized by Kennedy was sent to the American Consul General in the Dominican Republic specifically stating that US policy did not condone political assassination. On the 201

Id. at 80–82. Id. at 84–86. The diving suit was to be given to Castro by James Donovan. At the time, Donovan was negotiating with the Cubans for release of the Bay of Pigs prisoners. The CIA abandoned the plan when it learned that Donovan had already given Castro a wet suit. Id. at 85– 86. 203 Id. at 263–264. 204 Id. at 191–215. 202

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other hand, the cable indicated that the US continued to support the opposition group.205

7.6.1.4 Ngo Dihn Diem In November 1963, President Ngo Dihn Diem of South Vietnam was killed during a military coup. The US, which supported the coup, had earlier been approached by one of the plotters concerning the possibility of using assassination to force a change in the regime.206 In a cable to the Director of Central Intelligence, the Saigon Station Chief supported the idea, stating that the alternative was ‘‘either a bloodbath in Saigon or a protracted struggle which would rip the Army and the country assunder [sic].’’207 Director McCone responded that the US could not ‘‘be in the position of stimulating, approving, or supporting assassination … thereby engaging our responsibility therefor.’’208 This message was passed to the coup plotters, who replied ‘‘alright, you do not like it, we would not talk about it anymore.209 The Church Committee found that although the US supported the coup resulting in Diem’s death, the US had no involvement in the killing.210

7.6.1.5 General Rene Schneider In September 1970, Salvador Allende Gossens, perceived by the US as a leftist, won a plurality in the Chilean presidential elections. Because he had not secured a

205

Id. at 191. Id. at 217. 207 Cable from CIA Saigon Station Chief to John McCone, Director of Central Intelligence (October 5, 1963), reprinted in id. at 217. 208 There were actually two cables: one on October 5, 1963 and one on October 6, 1963. The first cable best expresses McCone’s views on assassination: 206

[W]e certainly cannot be in the position of stimulating, approving, or supporting assassination, but on the other hand, we are in no way responsible for stopping every such threat of which we might receive even partial knowledge. We certainly would not favor assassination of Diem. We believe engaging ourselves by taking position on this matter opens door too easily for probes of our position re others, re support of regime, et cetera. Consequently believe best approach is hands off. However, we naturally interested [sic] in intelligence on any such plan. Cable from CIA Saigon Station Chief to John McCone, Director of Central Intelligence (October 5, 1963). Reprinted in Church Report, supra note 191, at 217. The position taken is practical, not legal. Nevertheless, the cable indicates CIA recognition that assassination was in some sense wrongful. Although the cable forbids US participation in assassination attempts, it condones supporting coups in which assassination may result. 209 Church Report, supra note 191, at 221. 210 Id. at 217.

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majority, the Chilean Congress was constitutionally charged with selecting the president from the top two finishers. In the past, the Congress had always selected the candidate who garnered the plurality of votes. Faced with the prospect of Allende’s ascension to power, the US began actively fomenting a military coup.211 General Schneider, the Commander-in-Chief of the Chilean armed forces, frustrated the US coup efforts. Although he was not an Allende supporter, General Schneider was a strict constitutionalist who opposed military coups generally. Therefore, if the coup was to be successful, Schneider had to be removed. Plotters ultimately made three attempts to kidnap the general. During the botched third attempt, Schneider was killed. Although the Church Committee determined that the role of the US in the coup attempts was substantial, it concluded that no US official authorized the assassination of General Schneider.212

7.6.1.6 Findings of the Church Committee The Church Committee Report concluded with findings, conclusions, and recommendations. Since the executive orders partly resulted from the investigation, the committee findings should be reviewed. The Committee made essentially three findings: (1) Due to a breakdown in the CIA’s command and control structure, it was possible to mount assassination plots without express authorization; (2) Many of the officials involved in the plots believed them to be permissible; and (3) Communication broke down between those in charge of the plots and their superiors. This breakdown resulted not only from the failure of action officers to keep their superiors informed, but also from the failure of superiors to make clear that assassination was an impermissible instrument of foreign policy.213 In short, the communicative process within the agency was in disarray. Those in charge of the operations did not know what boundaries they were required to work within, and their superiors made no effort to guide them. Thus, while none of the operations reviewed was alone renegade, in a sense, the entire agency was. One likely motivation for the executive orders was to remedy the confusion over the US assassination policy. The Church Report also reached conclusions on policy matters that are valuable in understanding the genesis of the current prohibitions. The Committee argued

211 Id. at 225. In September 1970, President Nixon told D.C.I. Helms that Allende was unacceptable and instructed him to organize a military coup to block his accession to power. The US government provided the coup plotters with financial aid, machine guns, and other equipment. Id. at 225–227. 212 Id. at 262. Director Helms indicated that under his command the CIA would not engage in assassination. He testified that ‘‘when I became Director, I had already made up my mind that we weren’t going to have any of that business when I was Director, and I had made that clear to my fellows …’’ Id. at 228. 213 Id. at 261–267.

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that assassination is impractical, and that it violates the ‘‘moral precepts fundamental to our way of life.’’214 Moreover, assassination undermines the confidence of the American public in its government.215 Therefore, assassination was not an acceptable tool of US foreign policy, even in the context of the Cold War. However, the Committee intimated that not every operation resulting in the death of a foreign official constitutes complicity in assassination. In discussing coups, for instance, it stated that ‘‘[t]he possibility of assassination … is one of the issues to be considered in determining the propriety of US involvement…, particularly where the assassination of a foreign leader is a likely prospect.’’216 This statement suggests that the Committee opposed prohibiting US involvement in a coup when assassination is merely a possibility. Of course, the comment also supports prohibiting involvement when assassination is a probability. Additionally, it suggests that an act is more likely to constitute assassination the more highly placed the target. This view implies a political aspect to the Committee’s understanding of assassination similar to that in international law. The Committee’s analysis of the five incidents provides further support for this conclusion. In the Trujillo, Diem, and Schneider affairs, each target died in a USsupported coup attempt. However, the Committee emphasized that in none of the cases was the US directly involved in the actual assassination.217 The strongest condemnation went to the Castro and Lumumba operations, in which the death of the leaders was an acknowledged CIA goal. Second, the Committee retreated from its conclusion that the Cold War did not merit US involvement in assassination plots by noting that none of them involved an imminent danger to the US. It stated that of the five cases studied, only Castro posed a physical danger to the country, and then only during the Cuban missile crisis.218 These comments suggest that in situations of imminent physical danger to the US, it might be acceptable to target an individual. Finally, the Committee framed its concern about assassination undermining public confidence in the government in terms of an operation ‘‘almost inevitably becoming known.’’219 This suggests that clandestine or covert operations leading to killings carry the greater political liability of being characterized as assassination. Therefore, overt operations are less likely to be viewed by the public as assassinations. Perhaps the best clue to the Committee’s understanding of permissible actions can be seen in the legislation it proposed. The Committee was concerned that promulgated assassination policies would be subject to change as administrations 214

Id. at 257. Id. at 258. 216 Id. 217 Note that in the Diem and Schneider affairs, the D.C.I. specifically instructed subordinates not to participate in assassination attempts. In the latter case, the instruction assumed the aura of organizational policy. Thus, the agency had generally rejected the excesses of the Lumumba and Castro operations by the time of these affairs. 218 Id. at 258. 219 Id. 215

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and senior officials were replaced. It was also concerned that while current law made it a crime to kill or conspire to kill a foreign official while in the US,220 no complementary ban prohibited acts occurring beyond national borders. A statutory ban on assassination would serve to cure both of these problems. The proposed statute is particularly interesting for what it does and does not outlaw. It prohibits killing a foreign official because of his ‘‘political views, actions, or statements.’’221 This provision limits the prohibition to politically motivated actions. The comments accompanying the proposed statute make clear that the term ‘‘political’’ modifies ‘‘views, actions, and statements,’’ not simply the word ‘‘views.’’222 This provision limits the prohibition to politically motivated actions. The comments accompanying the proposed statute make clear that the term ‘‘political’’ modifies ‘‘views, actions, and statements,’’ not simply the word ‘‘views.’’222 The proposed statute thus treats assassination in a manner similar to international law, and it does not clearly prohibit non-political killings. The proposed statute also defines the phrase ‘‘foreign official’’ broadly in terms of governmental position. Virtually all officials or representatives of a foreign government are protected by the statute, as are those of a ‘‘foreign political group, party, military force, movement or other association.’’223 The Committee included the latter categories because it recognized that individuals serving such organizations are often the targets of politically motivated assassination attempts.224 220 221

18 U.S.C. §§ 1116–1117 (1988). The proposed statute explicitly directs that: Whoever being an officer or employee of the US, while outside the US and the special maritime and territorial jurisdiction of the US, kills any foreign official, because of such official’s political views, actions or statements, while such official is outside the US and such jurisdiction, shall be punished as provided.

Proposed Statute, in Church Report, supra note 191, app. A, § 1118(d). The proposed statute also prohibited conspiracy and attempted assassination. Id. § 1118(a)–(c). 222 ‘‘Killing, attempting to kill, or conspiring to kill would be punishable under the statute only if it were politically motivated. Political motivation would encompass the acts against foreign officials because of their political views, actions, or statements.’’ Id. at 283 cmt. 222 ‘‘Killing, attempting to kill, or conspiring to kill would be punishable under the statute only if it were politically motivated. Political motivation would encompass the acts against foreign officials because of their political views, actions, or statements.’’ Id. at 283 cmt. 223 The proposed statute states: As used in this section, the term ‘foreign’ official means a Chief of State, or the political equivalent, President, Vice President, Prime Minister, Premier, Foreign Minister, Ambassador, or other officer, employee, or agent; (a) of a foreign government with which the US is not at war pursuant to a declaration of war or against which the US Armed Forces have not been introduced into hostilities or situations pursuant to the provisions of the War Powers Resolution; or (b) of a foreign political group, Party, military force, movement or other association with which the US is not at war…; or (c) of an international organization. Proposed Statute, supra note 221, § 1118(e)(2). 224 Church Report, supra note 191, at 238.

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The item also encompasses representatives of international organizations and states not recognized by the US. By casting its net so widely, the Committee intended to close any loopholes that might permit politics to drive an assassination operation. For the Committee, political motivation was the key to defining assassination. This conclusion gains further support from the fact that the statute does not cover circumstances where the US is engaged in hostilities with any of the aforementioned states or organizations. It specifically denies protection to the enumerated officials when the US is involved in combat against the entity they represent pursuant to the War Powers Resolution.225 In the mid-1970s, Congress was engaged in a post-Vietnam effort to recapture war-making authority from the Executive Branch; hence, the proposed statute emphasized the declaration of war or a War Powers Resolution. Given the overall purpose of the statute, however, the hostilities exclusion cannot be viewed as an attempt by Congress to protect the right to commit US troops to combat. Instead, since the issue was assassination, this exclusion must be viewed both as an acknowledgment that the targeting of certain officials would not constitute assassination under the law of armed conflict, and as a desire to avoid unreasonably limiting valid military operations.226 From the Committee’s perspective, therefore, a domestic ban on assassination should be strictly limited to peacetime situations. In summary, analysis of the Church Committee’s views on assassination yields the following conclusions: 1. Assassination is politically motivated. 2. Clandestine or covert operations are more likely than overt actions to constitute assassination. 3. A ban on assassination does not preclude support for coups in which an official may possibly be killed or assassinated. Instead, each operation must be evaluated contextually to determine the likelihood of assassination. 4. A killing justified by imminent physical danger to the US would be unlikely to amount to assassination. 5. Assassination prohibitions are not limited to heads of state, but cover a range of officials representing states and non-governmental organizations.

225

See supra note 223 and accompanying text. The Church Committee acknowledged that the President had the authority to act on his own in certain circumstances, apparently without a declaration of war or an invocation of the war Powers Resolution. It noted that ‘‘[i]n a grave emergency, the President has a limited power to act, not in violation of the law, but in accord with his own responsibilities under the Constitution to defend the Nation …’’ Church Report, supra note 191, at 284. This comment came in response to some witnesses who, citing Hitler as an example, asked whether assassination should be ruled out even in extraordinary circumstances. However, though recognizing that situations might require the President to act outside the confines of the proposed statute, the Committee provided the following caveat: ‘‘any action taken by a president pursuant to his limited inherent powers and in apparent conflict with the law must be disclosed to Congress. Only then can Congress judge whether the action truly represented …an ‘indispensable necessity’ to the life of the Nation.’’ Id. 226

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6. The term assassination is not meant to cover operations occurring during periods of armed conflict.

7.6.2 Executive and Congressional Initiatives in the Aftermath of the Church Report Interestingly, even before the Church Committee began to inquire actively into government involvement in assassination, there was a clear policy trend toward convergence with the Committee’s recommendations. Most notably, in 1972 Director Helms responded to press allegations of CIA involvement by circulating a memo instructing agency personnel not to undertake or support such operations.227 His successor, William Colby, did precisely the same thing the following year.228 Once the investigations began, the Executive Branch publicly condemned assassination. In June 1975, President Ford announced his opposition to political assassination and banned its use during his administration.229 The next year, he issued Executive Order 11,905, the first of three presidential orders addressing assassination. It provided that ‘‘[n]o employee of the US Government shall engage in, or conspire to engage in political assassination.’’230 By the time the Church Report was published, the Executive Branch was unanimous in its condemnation of assassination. Subsequent administrations continued to ban assassination. In 1978, President Carter issued Executive Order 12,306, a slightly modified version of Ford’s original order. In addition to extending its scope to those ‘‘acting on behalf of the US,’’ Carter’s order deleted the word ‘‘political’’ as a modifier of assassination.231 Then, upon gaining power President Reagan issued Executive Order 12,333. It maintained Carter’s text intact, while adding a new section that read: ‘‘Indirect 227

The memo stated: It has recently been alleged in the press that CIA engages in assassination. As you are well aware, this is not the case, and Agency policy has long been clear on this issue. To underline it, however, I direct that no such activity or operation be undertaken, assisted or suggested by any of our personnel …

Memorandum from CIA Director Helms to Deputy Directors (March 6, 1972) (on file with author). 228 See Memorandum from CIA Director Colby to Deputy Directors (August 29, 1973) (‘‘The CIA will not engage in assassination nor induce, assist or suggest to others that assassination be employed.’’) (on file with author). 229 11 Wkly. Comp. Pres. Doc. 611 (June 9, 1975). 230 Exec. Order No. 11,905, § 5(g), 3 C.F.R. 90, 101 (1976), reprinted in 50 U.S.C.A. § 401 at 1848, 1853 (West 1976). 231 Exec. Order No. 12,036, § 2-305, 3 C.F.R. 112, 129 (1978), reprinted in 50 U.S.C.A. § 401 at 1576, 1583 (West Supp. m 1979).

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Participation: No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.’’232 Reagan’s Executive Order remains in effect for the Bush Administration. Throughout this period Congress made several unsuccessful attempts to legislate a ban. In 1976, a House bill provided that ‘‘whoever, except in time of war, while engaged in the duties of an intelligence operation of the Government of the US, willfully kills any person shall be imprisoned for not less than 1 year.’’233 Two years later, the Senate attempted to outlaw the killing of a foreign official ‘‘because of such official’s office or position, or because of such official’s political views, actions, or statements.’’234 A 1980 effort in both chambers to implement President Carter’s executive order was equally unsuccessful.235 Perhaps the most noteworthy attempt came in the aftermath of the 1986 raid on Libya. Both the House and Senate introduced bills that would have authorized the President ‘‘to undertake actions to protect US citizens against terrorists and terrorist activity through the use of such anti-terrorism and counter-terrorism measures as he deems necessary.’’236 A number of Congressmen, including two powerful sponsors, Jeremiah Denton and Robert Dole, reportedly interpreted the legislation to authorize assassination as a legitimate counter-terrorist operation.237 One sponsor claimed Qadhafi’s death in the raid would have been acceptable under the terms of the bill.238 Neither the House nor Senate version made it out of committee.

7.6.3 The Ban on Assassination Interpreted in Light of US Practice 7.6.3.1 Legislation Affecting Assassination Though no legislation prohibiting assassination has successfully passed into law, a number of current statutes affect assassination operations. Several make killing,

232

Exec. Order No. 12,333, 3 C.F.R. 200, 213 (1981), reprinted in 50 U.S.C.A. § 401 (1981). H.R. 15,542, 94th Cong., 2d Session § 9(1) (1976). 234 S. 2525, 95th Cong., 2d Session § 134(5) (1978). 235 S. 2284, 96th Cong., 2d Session § 131 (1980); H.R. 6588, 96th Cong., 2d Session § 131 (1980). 236 S. Res. 2335, 99th Cong., 2d Session § 5 (1986); H.R. 4611, 99th Cong., 2d Session § 4(b) (1986). 237 See, e.g., Greenhouse 1986, at A9; Dewar 1986, at A24. 238 Hearings Before the Subcomm. on Arms Control, International Security and Science of the House Comm. on Foreign Affairs, 99th Cong., 2d Session 277 app. 7 (1986). 233

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attempts to kill, or conspiracies to kill certain US officials illegal.239 Although such acts would be illegal anyway, these laws classify the offense as a federal crime, emphasizing the special protection designated for government officials. Another law authorizes the President to furnish assistance to foreign countries to help combat terrorism. That law specifically cites assassination as a terrorist act.240 Finally, a specific statute implementing the New York convention prohibits the killing of an internationally protected person. That statute, however, covers killings only occurring within the US.241 What is the meaning to be attributed to the instruments cited above, and do they contribute to an understanding of the current ban? First, it is reasonable to conclude that the CIA Directives and the Ford executive order are no more restrictive than the recommendations of the Church Committee. A Congressional committee reviewing possible executive misconduct in the aftermath of Vietnam and the Watergate scandal, and cognizant of the presidential pronouncements on assassination, would be highly unlikely to conclude that the executive limitations were too restrictive. This contention finds support in comments in the Church Report that approved of the pronouncements and of Ford’s executive order.242 In light of the modifications it made to its predecessor, President Carter’s order arguably could be read as expanding the Committee’s proposed prohibitions. In particular, the ‘‘acting on behalf’’ language invites the conclusion that involvement in coup attempts was to be strictly limited. Similarly, the deletion of the term ‘‘political’’ could be seen as enlarging the scope of the previous ban. In fact, broadly prohibitive interpretations of the Carter Executive Order were advanced, particularly within Congress.243 However, President Carter’s National Security Adviser, Zbigniew Brzezinski, later indicated that he believed the order was interpreted as more restrictive than the President had intended. In his opinion, President Carter never meant the order to foreclose support for a coup if the possibility that the target would be killed could not be ruled out. The order simply did not require planners to decide in advance the consequences of the coup.244 This view comports with the

239 18 U.S.C. § 351 (1988) (kill, attempt to kill, or conspire to kill member of Congress, member of Congress elect, department head or nominee, second ranking individual in department, Director of Central Intelligence or Deputy Director, major presidential candidate, or Supreme Court Justice or nominee); 18 U.S.C. § 871 (1988) (threatening to kill or kidnap President, Vice President, President Elect or other officer next in line of succession); 18 U.S.C. § 1114 (1988) (killing federal law enforcement official or member of federal judiciary); 18 U.S.C. § 1751 (1988) (killing individuals mentioned in Section 871 or member of presidential staff). 240 18 U.S.C. § 2349aa (1990). 241 18 U.S.C. § 1116 (1988). 242 However, these comments also recommended legislation to ensure that the Executive Branch would not resort to assassination in the future. Church Report, supra note 191, at 281–282. 243 One on One (CBS television broadcast, October 19, 1989) (John McLaughlin interviewing Zbigniew Brzezinski). 244 Id.

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Committee’s understanding. Thus, Carter’s revisions are best characterized as merely closing potential textual loopholes in the previous order.

7.6.3.2 The CIA Psychological Operations Manual in Nicaragua The subject of assassination became imbued with controversy during the Reagan administration. In 1984, public revelations that the CIA had provided Contra forces in Nicaragua with a manual encouraging assassination of various government officials sparked the debate. The publication, Psychological Operations in Guerilla Warfare, described itself as ‘‘a manual for the training of guerrillas in psychological operations, and its application to the concrete case of the Christian and democratic crusade being waged in Nicaragua by the Freedom Commandos.’’245 In a section labeled ‘‘Selective Use of Violence for Propagandistic Effects,’’ the manual advised: It is possible to neutralize carefully selected and planned targets, such as court judges, mesta judges, police and State Security officials, CDS chiefs, etc. For psychological purposes it is necessary to take extreme precautions, and it is absolutely necessary to gather together the population affected, so that they will be present, take part in the act, and formulate accusations against the oppressor.246

It later noted that ‘‘[i]f possible, professional criminals will be hired to carry out specific selective jobs.’’247 A firestorm of controversy erupted over the manual. The Nicaraguans brought the matter to the International Court of Justice, which held that ‘‘by producing… and disseminating [the manual] to contra forces, [the US] has encouraged commission by them of acts contrary to general principles of humanitarian law.’’248 Since the Court also held that US activity in support of the Contras was not selfdefense,249 the finding is consistent with international law regarding assassination outside the law of armed conflict. Specific individuals were targeted and, if the US was not validly engaged in self-defense, the encouragement of killings clearly would be politically motivated. Indeed, political figures were among the primary targets. However, the Court also held that the production of the manual was, in a sense, a renegade operation. As a result, there was ‘‘no basis for concluding that

245

Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 4, 65 (June 27) (quoting manual’s preface). According to evidence brought before the Court, about two thousand copies of the manual were sent to the Contras. Another three thousand were reportedly printed, but only one hundred are believed to have reached Nicaragua. Id. 246 246. Id. 247 247. Id. at 66. 248 248. Id. at 148. The Court ruled 14-1 on this matter, with Judge Oda dissenting. 249 See, e.g., id. at 104.

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any such acts which may have been committed are imputable to the US of America as acts of the US of America.’’250 Domestically, the operation would appear to have violated the second tier of the Reagan assassination ban, i.e., forbidding encouragement of assassination. Not surprisingly, the Administration quickly distanced itself from the operation. President Reagan directed both the CIA and the intelligence oversight board to investigate the matter.251 Further, during a televised election debate with Walter Mondale, the President stated that preparation and dissemination of the manual was ‘‘in direct contravention of my own executive order of 1981 that we would have nothing to do with regard to political assassination.’’252 The House Committee on Intelligence also took up the matter. Noting the great embarrassment the manual had caused to the US, the Committee found that it should not have been released and that the ‘‘specific actions it describes are repugnant to American values.’’253 Consistent with both the International Court and the Administration’s characterization of the affair, however, the Committee concluded that the plan was concocted by only a few CIA officers acting without authority or sufficient supervision. Thus, the government had committed no intentional violation of Executive Order 12,333.254 Ultimately, three of the six CIA officials involved were reprimanded, and two were suspended without pay. The sixth, a contract employee who actually prepared the manual, had his contract terminated. Among those reportedly punished was the CIA station chief in the Honduras.255 The incident reveals the operational code governing the domestic ban on assassination. Although the ban was not intentionally violated, virtually all the elite considered the acts impermissible under Executive Order 12,333. Apparently, the criteria emerging from the Church investigation remained relatively intact under the Reagan order. Given the targets (judges, political figures, etc.), the proposed killings were clearly political. At the same time, as a covert operation the affair was subject to greater scrutiny. With regard to coup involvement, the operation was not designed to support activity that might result in the killing of an official; it was direct encouragement of such acts. The affair also demonstrates that the ban encompassed more than high-ranking officials. The issue is more complex in determining the status of armed conflict. Although the US argued that its actions in Nicaragua were motivated by self-defense, an assertion the Court rejected, it did 250

Id. at 148. Statement by the Principal Deputy Press Secretary to the President, United Stales Policy Concerning Political Assassination, 20 Wkly. Comp. Pres. Doc. 1568 (October 18, 1984). 252 Debate Transcript, Reagan-Mondale, Kansas City, UPI, October 21, 1984, available in Lexis, Nexis Library, UPI File. 253 Permanent House Comm. on lntelligence, Report on Activities, H.R. Rep. No. 1196, 98th Cong., 2d Session 16 (1985). 254 Id. 255 CIA Mid-Level Personnel Punished on Terror Manual, Facts on File World News DIG., November 16, 1984, available in Lexis, Nexis Library, U.S. Affairs File. 251

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not extend this claim to cover distribution of the manual. Thus, even from the US perspective, the Nicaraguan situation did not cross threshold of armed conflict. In 1984, therefore, it appears that the ban as originally envisaged was in place.

7.6.3.3 The 1986 Raid on Libya The next debate on assassination came after the 1986 air attack on Libya. At 2 AM on April 15, 1986, US F-111s based in England began bombing three targets in the vicinity of Tripoli: El Azziziya Barracks, the home and headquarters of Muammar Qadaffi; Sida Bilal port, a training site for terrorists; and the military sections of Tripoli International Airport. Simultaneously, carrier-based A-6s hit two targets in Benghazi: Benina Airfield and Jamahiriyah Barracks, an alternate command post facility.256 During the raid on El Azziziya Barracks, Qadhafi’s wife and two sons were injured, and an adopted daughter was killed. Qadhafi himself escaped unharmed. The international response to the attack was mixed but generally negative. The UK, Israel and South Africa alone formally supported the strike,257 while France and West Germany were guardedly critical.258 Middle-Eastern states decried the use of force against an Arab nation,259 and the UN General Assembly denounced the attack. A Security Council Resolution condemning both Libyan terrorism and the US raid was vetoed by the US, the UK, and France.260 The international reaction did not send a clear message about assassination specifically. Those states that condemned the raid generally did so based on a rationale of wrongful resort to force. That the reactions ostensibly were mixed, however, dilutes any prescriptive effect. It appears that the overt nature of the attack resulted in much of the public outrage in Arab states.261 Reaction in the US, on the other hand, was favorable, with bipartisan Congressional support and a seventy-seven percent public approval rating.262 One might conclude from this that the American people favor operations to kill individuals like Qadhafi,

256

US Jets Bomb Libyan Targets, Facts on File World News DIG., April 18, 1986, available in LEXIS, Nexis Library, US Affairs File. On the raid generally, see Davis 1990. 257 US Jets Bomb Libyan Targets, supra note 256. 258 Although France condemned the raid as a reprisal, French officials later acknowledged that they actually favored stronger military action. France was also apparently irritated at not being notified earlier of the planned operation. Reisman and Baker 1992, at 109. Germany, while indicating its preference for political solutions, seemed to accept the US self-defense argument. According to Chancellor Helmut Kohl, ‘‘whoever continually preaches and practices violence, as [Qadhafi] does, must count on the victims’ defending themselves.’’ Kempster 1986, at 1. 259 US Jets Bomb Libyan Targets, supra note 256. 260 Reisman and Baker 1992, at 110 (citing G.A. Res. 41/38, UN GAOR, 41st Session, Supp. No. 51, at 34, U.N. Doc. A/41/51 (1986)). 261 See, e.g., Reisman and Baker 1992, at 109–111. 262 US Jets Bomb Libyan Targets, supra note 256.

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regardless of potential violations of the assassination ban. Indeed, in a public opinion poll conducted just prior to the attack, sixty-one percent of respondents agreed the US should ‘‘covertly assassinate terrorist leaders.’’263 Aware of the public opinion, some Senators proposed liberalizing Executive Order 12,333,264 while others sponsored legislation to expand Presidential discretion in dealing with terrorism.265 Yet the Reagan Administration did not view the order as limiting its options for dealing with terrorists, and it proposed no change to Executive Order 12,333. In fact, it argued that the raid did not violate the ban. First, the Administration repeatedly denied that Qadhafi was a target. President Reagan publicly stated that ‘‘we weren’t out to kill anybody,’’266 a message echoed by Secretary of Defense Weinberger, Secretary of State Schultz, and others in the Administration.267 The Reagan Administration characterized the attack as a legitimate self-defense operation under Article 51 of the U.N. Charter.268 This avoids any controversy over the unsettled doctrines of reprisal and anticipatory self-defense. The April

263

Jenkins 1986, § 5, at 2. Senator Pressler questioned the wisdom of engaging in bombing when other methods less deadly to innocents might achieve the intended results: 264

I do not propose that we revert to the age of Machiavelli, when assassination was a common instrument of state policy. But I do believe we should broaden the President’s options for coping with terrorism. The military option, as demonstrated in the Libyan case last week, is a massive tool with which to pursue terrorists. I do not question the propriety of utilizing that option in this case, and I do support the President’s action. But we should be considering whether there are other ways to combat terrorists than by aerial or missile bombardment of cities .… I know that it is repugnant to our thinking and repugnant in a democracy to even talk of such things, but we may be living in an era in which, to protect the lives of American citizens, we might need to consider changing that Executive Order. 132 Cong. Rec. 54574 (1986) (statement of Sen. Pressler). 265 See supra notes 233–235 and accompanying text. 266 Gordon 1986, at A5. 267 Quinn 1986. 268 Actually, the Administration’s statements seemed to include justifications based on both anticipatory self-defense and reprisal. For example, in the President’s national address, he initially seemed to indicate the action was a reprisal for Libyan terrorism: ‘‘Several weeks ago in New Orleans, I warned Colonel Qadhafi we would hold his regime accountable for any new terrorist attacks launched against American citizens. More recently, I made it clear we would respond as soon as we determined conclusively who was responsible …’’ Reagan then provided a classic self-defense justification: ‘‘Self-defense is not only our right, it is our duty. It is the purpose behind the mission undertaken tonight—a mission fully consistent with Article 51 of the UN Charter.’’ President Ronald Reagan, Address to the Nation (April 14, 1986), in Dep’t St. Bull., June 1986, at 1–2; see also White House Statement, Dep’t St. Bull., June 1986, at 1. The best approach, given the number of Libyan-sponsored terrorist operations against American interests, is to view the situation as one of continuing attack, justifying standard selfdefense.

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1986 bombing of La Belle Disco in West Berlin prompted the response by the US intelligence information indicated that Libya was directly involved in the bombing, and that Libya was planning future attacks on up to thirty US diplomatic facilities worldwide.269 Despite administration denials that Qadhafi was a target, speculation to the contrary circulated.270 Perhaps in response to such allegations, senior officials later offered a second explanation. Most noteworthy was that put forth in 1989 by Judge Sofaer, formerly the State Department Legal Advisor. Maintaining that the raid was valid and legal, he added: Nor was Colonel Qadhafi personally immune from the risks of exposure to a legitimate attack. He was and is personally responsible for Libya’s policy of training, assisting, and utilizing terrorists in attacks on US citizens, diplomats, troops, and facilities. His position as head of state provided him no legal immunity from being attacked when present at a proper military target.271

Judge Sofaer did not say that Qadhafi per se was a valid target, but rather that he would be when present at a proper military target. That an individual’s position does not immunize him from being a collateral victim of a lawful attack seems reasonable. Sofaer, however, seemed to be saying more. In the last sentence of the cited passage he used the term ‘‘being attacked.’’ Since civilian targets cannot lawfully be the object of attack, then, unless Judge Sofaer misspoke, he must have considered Qadhafi a legitimate target. As a whole, the passage suggests that if an individual, official or not, is engaged in an activity meriting a self-defensive response, he himself may become a lawful target. In essence, Judge Sofaer was applying the law of armed conflict. What can the Libya raid tell us about Executive Order 12,333 in relation to the operational code? First, a narrow reading of the order seems to find widespread support among the general public and certain political elites. Although Qadhafi sometimes lived at El Azziziya Barracks and surely might have been killed in the attack, the Administration maintained that the ban would apply only to more specific targeting. Judge Sofaer took an even narrower approach. In applying the law of armed conflict, he implicitly suggested that the ban survives only to the degree prescribed under the law of war. One might question whether an operation meets the criteria

269 Joint News Conference by George Schultz, Secretary of State, and Casper Weinberger, Secretary of Defense (April 14, 1986), in Dep’t St. Bull., June 1986, at 3. 270 Seymour Hersh, writing in the New York Times, asserted that the primary goal of the raid was to kill Qadhafi. He based his conclusion on over 70 interviews with current and former officials in the White House, the State Department, the CIA, and the Department of Defense. According to Hersh, the operation was planned in the National Security Council by a small group of officials including Oliver North and John Poindexter. Furthermore, the idea of killing Qadhafi’s family apparently was the brainchild of several senior CIA officers who believed that in a ‘‘Bedouin culture Qadhafi would be diminished as a leader if he could not protect his home.’’ Hersh 1987, § 6 (Magazine), at 17. On the strategy against Libya generally, see Woodward 1986, at A1. 271 Sofaer 1989, at 120.

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of armed conflict; but this question is separate from the issue of the ban’s limits after hostilities commence. This interpretation is consistent with the Church Report, the proposed legislation, and analysis under international law. The Reagan Administration essentially interpreted the domestic ban along the lines of its predecessors. It continued to restrict the use of political assassination as a direct instrument of foreign policy except in situations of armed conflict. When such conflict arose, either the ban gave way to the law of armed conflict, or it remained operative but only in accordance with that law. Although lacking practical differentiation, the latter view is more politically appealing.272

7.6.3.4 The Failed Giroldi Coup in Panama Executive Order 12,333 continues to apply under the Bush Administration.273 While events again have forced reconsideration of the order’s proper interpretation, the operational code governing its application remains intact. In 1989, the issue of assassination recaptured attention following the attempted coup in Panama by Major Moises Giroldi Vega against the government of Manuel Noriega. The Administration clearly wanted Noriega toppled. Yet when the coup that was encouraged by the US began to falter, US forces did not intervene to salvage the venture. The Bush Administration drew sharp criticism for cutting the plotters adrift at the crucial moment. Administration officials reacted to criticism by accusing Congress of interpreting the assassination ban too broadly, thereby imposing excessive limitations on US support of coups. The interpretation stems from a Senate Intelligence Committee (Intelligence Committee) letter issued in 1988 when the Administration presented the Intelligence Committee with a plan for a Panamanian coup. An accompanying CIA assessment reportedly indicated that Noriega might be killed and that the Administration did not directly control the coup plotters. The Intelligence Committee forwarded a letter to President Reagan formally disapproving the plan. The letter apparently also suggested that the CIA had an obligation to prevent assassination if a foreigner recruited by the US intended to engage in such activities. This comment was interpreted by some as requiring the US to provide advance notice to targeted individuals if it learned of an assassination plot.274

272

Reports did emerge in 1988, based in part on Bob Woodward’s Veil: The Secret Wars of the CIA, that in 1984 and 1985 President Reagan signed intelligence authorizations suggesting that actions taken during a covert anti-terrorist operation would be deemed lawful if officially approved and undertaken in good faith. These authorizations were described as ‘‘licenses to kill’’ by the media. The Reagan Administration denied the existence of such documents. See, e.g., May 1988, at 7; Engelberg 1988, at A13; Woodward and Pincus 1988, at 1. 273 Parks 1989, at 4. 274 Engelberg 1989, at A10. During a meeting with a group of senators, President Bush cited the notification ‘‘requirement’’ as an example of congressional limitations in covert actions like the Giroldi coup.

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The failed coup attempt highlighted the matter. Defense Secretary Cheney testified before the Intelligence Committee that the guidelines had inhibited the administration from establishing communication with the coup plotters.275 National Security Advisor Brent Scowcroft also criticized the restrictions, attacking the Intelligence Committee for ‘‘micromanagement of the executive branch going clear back to the executive order prohibiting assassinations, which was forced by Congress.’’276 Indeed the Intelligence Committee has no power to interpret the executive order in a binding manner. Its role is to review intelligence operations, not to forbid or approve them. Nevertheless, the importance of maintaining public support and international credibility in foreign affairs effectively lend the Intelligence Committee de facto supervisory power. Not surprisingly, the Intelligence Committee denied allegations that it had broadened the restrictions. Senator Cohen, while defending the decision not to move against Noriega, indicated that ‘‘[t]here is merit for the President and Congress to explore how we might clarify existing legal ambiguities that unwittingly may have reduced our intelligence officers to passive listening posts.’’277 Senator Boren was more to the point, arguing that the executive order should not be subject to ‘‘extreme interpretations.’’278 In particular, he maintained that US support should not be prohibited if assassination per se was not an explicit goal; he further stated that the Intelligence Committee never intended to require warnings to foreign leaders of imminent coups that could potentially result in their death.279 In light of these statements, it is not surprising that 275

Marcus and Devroy 1989, at A1. According to the article, however, two senior CIA officials told the Washington Post after Cheney’s comments that the congressional restrictions did not limit CIA activities in the Giroldi coup. Id. On the other hand, Director Webster told the Senate Select Committee on Intelligence after the coup attempt that certain US agents in Panama were uncertain whether they would have been disciplined for violating the executive order in assisting Giroldi’s forces. Blake 1990, at 84. 276 Wise 1989, at 1, reprinted in 136 CONG. REC. S183 (daily ed. January 23, 1990). 277 Cohen 1989, at A27, reprinted in 135 CONG. REC. S13, 827 (daily ed. September 18, 1989). Senator Cohen argued against dispensing with the ban despite difficulties in application: For example, what if the target of an attack is a group rather than an individual? Or the attack itself involves not a rifle’s silver bullet but a bomb dropped from an FB-111? After all, Executive Order 12,333 would appear to ban placing a poison pen in one of Col. Moammar Gadhafi’s jump suits, but permit the release of a gravity bomb from several thousand feet onto his desert compound. How is one then to presume? Does the law turn upon whether a bullet or bomb carries a victim’s name? These are not questions reserved for theologians, but practical difficulties confronting those who serve on the front lines of danger. In the killing zone there are many cruel anomalies. Morality there may be measured in meters … The fact that it is difficult to determine the nature of an individual’s intent, however, does not mean we should abandon any effort to make that determination. Id. 278 279

Powers 1989, at M1. Id.

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President Bush and the Intelligence Committee agreed that the ban would not prohibit US involvement in certain coup attempts and would not require supplying advance notice to potential assassination targets.280 Despite the Intelligence Committee’s initial desire to read Executive Order 12,333 broadly, all sides appear to have agreed after the Giroldi affair that the domestic ban on assassination should be interpreted as it had since inception. Nevertheless, the debate proved that the ban was fraught with ambiguity. Effective supervision of future US operations would require clearer guidelines. 7.6.3.5 Executive Memoranda and Opinions The Army made the first attempt to provide such guidance. Even before the Giroldi coup attempt, senior Army experts in international law had prepared a memorandum seeking to define the content of Executive Order 12,333 and international prohibitions on assassination. In December 1989, the memorandum was published in Army Lawyer. Before publication, the press learned of the memo and characterized it as an attempt to narrow Executive Order 12,333 to the point of rendering it meaningless. Some members of the press even claimed that the memo permitted assassination.281 The confusion was ill-founded. The memorandum was designed to stimulate discussion for implementing the assassination ban in a 1991 version of the Army Manual. It was not intended to prescribe policy.282 Moreover, a careful reading reveals that the document is relatively non-controversial. The controversy apparently was sparked by the article’s discussion of the combatant/non-combatant distinction in the context of various levels of conflict. An analysis of this distinction, however, is not essential in determining whether a particular killing amounts to assassination. Specifically targeting a civilian during armed conflict is illegal, but in the absence of treachery, it is not assassination. Instead, it is a violation of the more basic ban on targeting civilians. Nevertheless, the combatant/ noncombatant distinction may be relevant in determining whether a killing was politically motivated, and thus violated the ban. 280

Id. Department of Defense Press Briefing, Fed. News Service, April 11, 1989, available in Lexis, Nexis Library, US Affairs File (briefing by Dan Howard) [hereinafter Howard Briefing]. 282 Department of Defense Regular Press Briefing, Fed. News Service, October 17, 1989, available in Lexis, Nexis Library, US Affairs File (briefing by Pete Williams). Referring to the memo, Defense Department spokesman Howard observed: 281

It was drafted by a bunch of lawyers for a bunch of lawyers. And they’re going to nitpick over it and decide what goes as a footnote in this manual here. This is not a—this sort of instruction and internal debate is not required for the national command authority, the President, to decide what needs to be done in dealing with a terrorist situation. We’re not trying to close the barn door after the horse ran away. Howard Briefing, supra note 281.

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Correct or not, the conclusions drawn in the memorandum are more permissive than those found in Protocol I. The conclusions as to what is or is not assassination, however, vary little, if at all, from the operational code in place since the Church Committee investigations. The memorandum essentially sets forth two premises. First, Executive Order 12,333 was intended to ‘‘preclude unilateral actions by individual agents or agencies against selected foreign public officials and to establish beyond any doubt that the US does not condone assassination as an instrument of national policy.’’283 Second, it was not intended to prevent the US from acting in self-defense against ‘‘legitimate threats to national security.’’284 Although the terms ‘‘self-defense’’ and ‘‘national security’’ are subject to abuse, assuming appropriate application, the conclusions accurately state the law. Additional sources in the Administration have attempted to clarify matters. CIA Director William Webster called on Congress and the President in October 1989 to give the Agency greater latitude in dealing with coups. Specifically, he argued that the Agency should be allowed to deal with coup plotters even in cases where individuals may be fatally at risk. Webster stated that this would not violate the US policy against ‘‘selective, individual assassination.’’285 The White House endorsed this view.286 Finally, the Department of Justice issued a legal opinion in late 1989 designed to clarify Executive Order 12,333. Although the opinion remains classified, other sources suggest that it confirms existing policy and does not propose new interpretations. The premise of the opinion, as noted by Webster, is that ‘‘you cannot equate violence with assassination,’’287 a creeping tendency existing prior to the US failure to act in the Giroldi coup attempt. Presumably with the Giroldi affair in mind, the opinion focused on assistance to coup plotters. The US would not directly participate in an operation to kill a foreign leader. Nevertheless, the prohibition against supporting coup plotters applied only where assassination was the goal. Asked whether this meant that an ‘‘accidental killing’’ of a political figure would not violate the ban, Director Webster replied: ‘‘That’s the legal guidance.’’288 Additionally, the opinion made clear that Executive Order 12,333 imposed no requirement to notify possible targets of coup plots.289

283

Parks 1989, at 8. Id. 285 Wise 1989. Another view was that the order’s ambiguity helped foster caution in covert operations. As Representative Beilenson, Chairman of the House Intelligence Committee argued, ‘‘[t]he fact that there’s a little bit of uncertainty about the Executive Order serves a useful purpose. We should be cautious when it comes to coups that may lead to assassination.’’ Peterzell 1989, at 50. Yet ambiguity can cut both ways. 286 Powers 1989, at 1. 287 Ottaway and Oberdorfer 1989, at A1, reprinted in 135 Cong. Rec. S15,096, S15,122 (1989). 288 Id. 289 Id. The opinion also apparently made the order applicable to the military. Peter Almond, Special Operations Forces Ask, Free Rein on Covert Jobs, Wash. Times, April 12, 1990, at A4. 284

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Once again, the efforts to clarify the domestic ban on assassination did not change the standards of permissibility.290 On the contrary, they track the legal criteria implicit in the Church Report. Possible confusion arises at the periphery of issues relating to self-defense and the specific goals of the coup plotters. In legal terms, the substantive rule is well established. Difficulties lie primarily in establishing the evidence necessary to meet the threshold for proving a violation.

7.6.3.6 The Gulf War Comments on military operations during the Persian Gulf conflict, however, provide fresh confirmation that confusion persists. Most noteworthy was Air Force Chief of Staff Michael Dugan’s comment that Saddam Hussein might be a target of coalition air strikes. General Dugan was dismissed for his remarks.291 Although the press characterized Dugan’s comment as advocating assassination, Saddam’s status as a combatant suggests that he was a lawful target. Yet the issue was really about policy, not law. As General Schwartzkopf observed, the US does not ‘‘have a policy of trying to kill any particular individual.’’292 In light of the delicate character of the Gulf coalition, not seeking to kill Saddam directly probably was good policy; avoiding public admissions of this objective certainly was good policy. Confusion was not limited to the press. For example, Representative McEwen introduced a resolution in the House to suspend the application of Executive Order 12,333 to Iraq until Hussein complied with all the UN resolutions relating to the Kuwait invasion.293 He argued that the order ‘‘prevent[ed] us from targeting the sources of attack upon the American forces,’’ and that ‘‘[i]n this trying time, those military planners, those Secretaries of Defense, those Commanders-in-Chief, that pilot who is flying into Baghdad, should not have to be faced with the possibility of having violated an executive order.’’294 The proposal was unnecessary, however, since Executive Order 12,333 would not have prevented the killing of Saddam Hussein in the absence of treachery, assuming that the order even applies during war. The widespread confusion relating to the issue of assassination was aptly illustrated during a Nightline television episode on the possibility of targeting Saddam Hussein. Responding to a question by Ted Koppel, Judge Sofaer correctly stated the law on the subject:

290 Along these lines, the Justice Department opinion was prepared by six Department of Justice and four CIA attorneys who reviewed 160 boxes of documents from the Carter, Ford, and Reagan administrations to interpret the order. Ottaway and Oberdorfer 1989, at A1. 291 Schmitt, supra note 2, at Al. 292 Livingstone 1991, at 69. 293 H.R. Con. Res. 39, 102d Cong., 1st Session (1991). 294 137 Cong. Rec. H536, H537 (1991).

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Q: Strictly speaking, is targeting Saddam Hussein illegal under US law? A: Well, there’s an executive order that prohibits assassination, and I understand assassination to mean an illegal killing, such as murder. Any killing in the middle of a war of a military figure would not be illegal. … Q: But if you know he’s in a certain villa and you send in fighter-bombers to hit that villa with a fairly safe confidence that you’re going to be killing him, is that legal or illegal? A: Well, putting aside the propriety of such a thing, or political wisdom of it, I would think it was clearly legal.295

Professor Abraham Chayes of Harvard Law School, who served as Legal Advisor to the State Department during the Kennedy Administration, had a different interpretation: Q: Legal or illegal? A: As I said, first, there is an executive order prohibiting assassination by any employee or anyone else acting on behalf of the US. In addition, we are party to a treaty for the prevention of crimes against protected persons, and the first in the list of protected persons is a head of state, and the treaty prohibits murder or other attacks on heads of state. And it’sQ: Even in the case of war? A: -well, I think you raised the point yourself in your questioning of Judge Sofaer. If Saddam was out leading his troops and he got killed in the midst of an engagement, well, that’s one thing. But if he is deliberately and selectively targeted, I think that’s another, and if we’re going to start building a ‘‘new order’’ under the rule of law, I think we ought to start applying it to ourselves.296

These comments simply misstate the law. First, the treaty that Professor Chayes mentioned, the New York Convention, neither criminalizes any acts nor applies to heads of state targeted within their own country. Instead, it requires signatories to implement domestic legislation outlawing the killing of selected officials who are abroad. Second, lawful targeting in wartime has never required that the individual actually be engaged in combat. Rather, it depends on combatant status. The general directing operations miles from battle is as valid a target as the commander leading his troops into combat. The same applies to Saddam Hussein. Once he became a combatant, the law of war clearly permitted targeting him.

7.6.3.7 Principles for Evaluating Individual Targeting That such an eminent legal scholar as Professor Chayes so misunderstands the law on assassination is strong evidence that the issue requires much clarification. The following analysis provides a general guideline for applying the current US

295

Nightline: Why Not Assassinate Saddam Hussein? (ABC television broadcast, February 4, 1991). 296 Id.

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operational code. First, if there is a state of armed conflict, the ban on assassination is governed by the law of armed conflict, and the focus is on the issue of treachery. Since the law of armed conflict generally only regulates the conduct of hostilities (jus in bello) and not the taking of arms itself (jus ad bellum), the validity of the initial resort to force does not affect the analysis. However, when it is unclear whether armed conflict exists under international law, the validity of using force per se will increase the likelihood that the killing will not be deemed unlawful under the political motivation criterion, even if it is later determined that no state of armed conflict existed. Second, in the absence of armed conflict, if the operation does not target a specific individual for who he is or what he does, the killing is not assassination, though it may violate other domestic or international laws. Third, a killing must be politically motivated to constitute assassination during peacetime. Although determining intent is a difficult task, as a general rule, the more highly placed the target, the more likely it is that the killing is political. Acts of selfdefense that comport with the principles of necessity and proportionality under international law trigger the rules applying to armed conflict. Under these rules, political motivation becomes irrelevant.

7.7 Conclusions 7.7.1 Practical Constraints Operations involving specific targeting merit careful consideration of the norms governing assassination; indeed, even operations with honorable or beneficial purposes must be rejected if they violate the assassination prohibitions. However, relations between states involve more than issues of law. Every international act, particularly those involving force, must be further evaluated from a cost-benefit perspective. Both the interests of the state contemplating action and the world community must be taken into consideration. The following factors, although not an exhaustive list, are relevant to the policymaker’s consideration of targeting operations. They are offered primarily to encourage further reflection. 1. Even if a specific targeting cannot be characterized as assassination, it is not automatically legal. In the absence of armed conflict, a host of doctrines prohibit resort to violence as a means for resolving international disputes. In particular, international law creates a rebuttable presumption, deriving in great part from Article 2(4) of the UN Charter, against using force for other than defensive purposes. This presumption does not prohibit all other uses of force. Those who resort to force, however, will bear the burden of proof. Additionally, since assassination is a specific element of the firmly entrenched general restriction on the use of force, the burden in the case of individual targeting will be especially high.

7.7 Conclusions

2.

3.

4.

5.

6.

7.

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Once a state of armed conflict arises, the subjective nature of the evaluation diminishes, and many acts that would otherwise be illegal become acceptable. Nonetheless, numerous restrictions would prohibit a non-treacherous killing. Most importantly, noncombatants cannot be the object of attack, and a careful analysis of the target’s status under the law of armed conflict is therefore essential. Similarly, the law restricts the means of causing death, as, for example, in the case with poison. Regardless of treachery, a killing using outlawed weapons will be illegal. Finally, every operation must be tested against the overarching principles of necessity and proportionality, for even non-treacherous killings of combatants using acceptable methods may be deemed impermissible. Targeting specific individuals may unintentionally strengthen enemy morale and resolve. The more visible and popular the target, the more likely this result will be. Cultural factors will affect the degree to which this phenomenon occurs. In the Middle East, for example, the concept of martyrdom makes individual targeting particularly risky. Targeting specific individuals might lead to retaliation, especially since some potential targets may have terrorist links. Policymakers must carefully weigh the possibility that their own leaders and citizens may become targets as a result of operations. Individual targeting always runs the risk of leading to escalation. Such targeting, correctly or not, is perceived as a qualitative increase in the level of violence. Therefore, the state against which the tactic is aimed may respond by escalating the means of warfare. Escalation is especially likely when that state cannot similarly target its opponents. The Desert Storm operation illustrates the potential for escalation. The coalition forces dominated the skies, and as a result, air power could have been used to target enemy leaders. Since Iraq could not similarly attack coalition leaders, it could have, for instance, reacted by employing chemical munitions. A clear attempt to kill Saddam Hussein might very well have inspired the use of chemical arms. Targeted individuals aware of their fate may become irrational and intransigent. They may become distrustful of those around them, develop particular hatred for the enemy, or simply begin thinking irrationally. From both a military and political perspective, this is a dangerous situation. Military planning is based on calculations of cause and effect. When an adversary’s next move becomes unpredictable, coherent planning becomes impossible. Additionally, individual targeting might complicate negotiations for an end to hostilities. In particular, an individual who knows that he is targeted may adopt a fight-to-the-end mentality, believing that (assuming he survives) he will lose his position when hostilities cease. Targeted individuals are likely to be replaced by less acceptable alternatives. It may also be that no one is prepared to replace him. In this case, the power vacuum created by the death of the target may prove dangerously destabilizing. The killing of an individual with civil as well as military responsibilities may undercut the defeated state’s ability to rely upon its own resources after

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hostilities cease. In most conflicts, the victor does not seek to destroy totally his opponent’s governmental and social infrastructure, since the occupying force would then become responsible under international law for providing necessities to the defeated population and maintaining order. This responsibility represents an enormous financial and logistical burden. Additionally, the longer the occupation and the greater the scope of responsibility of the occupying force, the more likely political costs are to mount. For example, as Israel has learned in the occupied territories, maintaining a semblance of order provides one’s political enemies with much material for criticism. 8. Though the killing may be legal, many states may criticize the action as immoral. Individual killings may ultimately save lives, but a state’s political foes surely would reject this rationalization. Indeed, the discussion of humanitarian intervention aptly demonstrates that even when the very survival of a people is at stake, reasonable thinkers still argue against interventionist military operations. Furthermore, since assassination is so misunderstood legally, allegations that the state committing an individual killing has acted illegally seem inevitable; and legal replies may engender cynicism or condemnation. Potential political fallout may make the operation undesirable. 9. Policymakers must carefully consider their ultimate goal. Terrorism provides an apt illustration. Terrorist acts pose a threat to the victim state, and a forceful reaction makes sense. Although military operations may redress the immediate harm and create disincentives for other terrorists, the use of force against terrorists may isolate the nation employing it, as the Israeli experience demonstrates. Today, anti-Israeli terrorists can find safe haven in numerous countries, and state sponsorship of organizations engaged in terrorism against Israel is widespread. Furthermore, forceful anti-terrorist actions may engender more terrorist groups. This is not to say the state should allow itself to suffer repeatedly at the hands of terrorists; it should not. However, before acting, policymakers must carefully consider the long-term ramifications of their decisions. To win the battle but lose the war is senseless.

7.7.2 The Prohibitions Evaluated Ultimately the question is whether the prohibitions on assassination in international and domestic law serve a useful purpose. In a sense they do. By focusing attention on a particular act, they may make recurrence of that act less likely. The US experience, unfortunately, demonstrates the depths to which activities in support of foreign policy can sink. We now realize that in the decades preceding the Church Committee investigations, the US conspired to commit acts that violated international law. The problem, according to the Church Committee, arose

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from the lack of clarity of boundaries circumscribing such activities.297 To the extent that the bans diminish that uncertainty, they serve a positive function. On the other hand, the imprecision of the prohibitions and their lack of comprehensiveness have resulted in confusion. Outside the law of armed conflict, for instance, no universal prescription outlaws assassination. The one document that addresses the topic, the New York Convention, is limited in scope, and it fails even to mention the word assassination. Indeed, it relies on domestic law to criminalize the act.

7.7.2.1 The Shortcomings of the Current Prohibitions Despite the absence of clear-cut guides, the understanding of assassination under international law does require certain generally accepted elements. Most importantly, assassination is viewed as having a political component. Unfortunately, the criteria for ascertaining the political character of an act are ambiguous. Consequently, killings committed by opponents are likely to be labeled assassination; those committed by oneself or by allies are not. This situation is unacceptable. The status of assassination in the law of armed conflict is only marginally better. Commentators frequently confuse it with the norms governing lawful targets, though those are separate prescriptions. Legal analysis of military operations suffers accordingly. Furthermore, the prohibition arguably serves no purpose, since it is primarily understood as a variant of perfidy, a practice separately proscribed in the conduct of hostilities. It is hard to imagine any situation amounting to assassination that would not also violate the ban on perfidy or be prohibited as the targeting of protected individuals. An independent prohibition on assassination might make sense if the law of armed conflict prescribed penalties for violations. For example, it is useful in domestic law to distinguish between assault and aggravated assault because the state is able to impose greater punishment for the latter offense. But the law of armed conflict is not analogously structured; it sets forth no penalties at all. Thus, to differentiate between an act of perfidy and a treacherous killing is, given the general tendency to treat treachery and perfidy as equivalents, to engage in legalistic semantics. Possibly the worst state of affairs surrounds the domestic executive order outlawing assassination. Setting forth a prohibition without clearly delineating what it means is arguably more damaging than having no order at all. Not only does the absence of definitional guidelines render the order subject to abuse through exceedingly narrow interpretation, but (as in the Giroldi coup) it has the potential to inhibit valid operations out of fear that the ban might be violated. The failure of the executive order to outline exactly what it prohibits has set planners and operators adrift. The Justice Department and Army attempts to clarify

297

Church Report, supra note 191, at 265–279.

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its scope in recent years provide ample illustration of this problem. Those attempts have been relatively unsuccessful. The Justice Department memorandum, for instance, remains classified. Possibly this has been done to keep the opposition guessing and thereby serves a deterrent function. Yet the best deterrent would be to place those who would commit acts of violence against the US clearly on notice as to what the costs of their actions will be. Additionally, the memorandum does nothing to address adequately the domestic and international controversy of any operation that might be labeled assassination. Claims that the mission in question does or does not violate the executive order tend to follow in lockstep fashion. The Army memorandum also produced much confusion, at least within the press. If the US follows a policy of not engaging in assassination, it should set out that policy clearly and publicly. The mere fact that interpretations were deemed necessary at all illustrates the extent of the order’s vagueness. Given these problems, the best remedy is promulgation of an international convention specifically outlawing assassination. The tentative parameters of such an agreement can be determined by examining the issues raised by current prohibitions.

7.7.2.2 A Proposed International Convention The first priority is to determine exactly when the provisions of the proposed convention would become operative. As noted above, it is often difficult to determine when hostilities are ‘‘international’’ and whether they rise to the level of ‘‘armed conflict.’’ Despite this uncertainty, any international agreement on assassination must mesh with the existing law of armed conflict. Accordingly, the current distinctions between international and non-international conflict and between armed conflict and internal disturbances should be maintained. With regard to international character, an assassination convention should specifically exclude non-international conflicts from its coverage. These affairs are best left to domestic law, since they do not involve the international community in any fundamental way. Domestic law enforcement is not the problem; the problem is inappropriate means of settling international disputes. At the same time, the convention should not address situations amounting to armed conflict under international law. Such prescriptions are more appropriately placed within the law of armed conflict. Similarly, to avoid any confusion, the agreement should explicitly disclaim any intent to limit uses of deadly force that would otherwise be legitimate under international law. Self-defense would, therefore, be automatically excluded. In addition to determining when the prohibition is in effect, a workable legal prescription must imbue it with definitional substance. Any prohibition should be based on political motivation. Unfortunately, it is difficult to ascertain exactly where the boundaries of that term lie. The New York Convention, which explicitly lists those whose killing would amount to assassination, embodies the best approach. Targeting these individuals would be irrebuttably presumed to be politically motivated. Of course, the restriction would not be absolute. When the

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targeting of such persons would be otherwise permissible under international law, they would remain legitimate objects of attack. Unlike the New York Convention, the convention should not limit its application to either those enumerated officials currently outside their state or those who enjoy diplomatic status. The relevant inquiry is whether, not where, assassination has taken place. To impose geographical limits on the offense is to weaken its overall prescriptive and deterrent effect. Most importantly, the convention should specifically be self-executing, making the act criminal under international law. Indeed, it would not be unreasonable, in light of the proposed limitations set forth above, to characterize the prohibition as a codification of international customary law. Doing so, assuming that the assertion is widely accepted, will automatically incorporate the ban on assassination into the domestic law of many states—including, in some cases, even those states that do not become signatories. The convention should require states ratifying it to pass domestic implementing legislation. Such legislation will not only strengthen the international acceptability of the ban, but it will also make arguments that it represents customary law more plausible. To enhance its impact, broad extradition provisions should also be included, as should an attentat clause making it clear that the political offense exception does not apply. A number of questions are likely to arise concerning these proposals. In the first place, critics might argue that the exclusion of legitimate uses of deadly force from an assassination convention renders the agreement superfluous, for the acts forbidden therein would already be illegal under international law. This criticism is accurate, but not convincing. If assassination is considered to be a particularly heinous offense, then the community of nations should emphasize its impermissibility by specifically proscribing it. Although it will not make an otherwise legal act illegal, expressly setting forth the prohibition would perform both an informative and a deterrent function. This practice is consistent with other prescriptions under international law. For example, using chemical munitions in an attack on a state with which the actor is at peace would constitute an unlawful resort to force. At the same time, the use of chemical weapons would also be a separate violation of international law.298 The fact that an act violates more than one legal prescription does not always mean that multiple prohibitions are not beneficial. Critics might additionally assert that the proposed convention inherits the very uncertainty regarding ‘‘armed conflict’’ that this chapter criticized earlier. Yet if the ban on assassination is to fit logically between domestic law and the law of armed conflict, then it must adopt their characterization of the nature of conflict. The exclusion of legitimate uses of deadly force resolves this problem in part. Therefore, in the most likely scenario involving specific targeting where ‘‘armed 298

See Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65; Conference of States Parties to the 1925 Geneva Protocol and Other Interested States on the Prohibition of Chemical Weapons: Final Declaration, January 11, 1989, 28 I.L.M. 1020 (1989).

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conflict’’ is uncertain—anti-terrorist operations—the self-defense exception in the convention would keep the victim state’s options open. A particularly fervent allegation likely to be voiced is that by so narrowly limiting those individuals whose death will amount to assassination, the agreement forfeits much of its potential effect. Though this criticism is essentially correct, the scope of protected status has been circumscribed in an effort to provide a means of objectively evaluating whether an act is political or not. Obviously, some clearly political killings would not fall within the ambit of the ban simply because the target does not occupy one of the enumerated positions. That is unfortunate. However, a narrowly drafted prohibition that clearly applies to specific actions serves the interests of enforcement better than a broadly drafted ban subject to manipulation. Furthermore, any politically motivated killing outside the terms of the convention would almost certainly, at least in the case of state sponsorship, be prohibited under international law as a wrongful use of force. Should such a convention come into effect, the current executive ban should be rescinded. While the ban serves the useful function of restraining inappropriate operations, it also has sown great confusion. If the US were party to an international agreement, the executive order would serve no purpose. It could be discarded without inviting damaging domestic and international criticism that the US was legitimizing assassination. However, since no effort is underway to draft a convention like that proposed, any such agreement is unlikely to be ratified in the near future. To this degree, the flaws inherent in the current executive order will continue to plague coherent planning. Nevertheless, continuance of the executive order in its present form is unacceptable. Even government agencies seem confused about the boundaries of permissibility, and efforts to alleviate confusion by providing authoritative interpretations have been demonstrably ineffective. The uncertainty over its meaning has fostered the worst kind of public debates—those occurring in the absence of agreement over the subject of the debate.

7.7.2.3 Alternative Solutions Legislation To resolve this disorder, two tacks are possible. Congress could pass legislation along the lines of the proposed convention. This would be a wise policy if most other states had comparable legislation, for a general international understanding of what such legislation was meant to encompass would necessarily emerge. However, today only the US has explicitly banned the use of assassination as an instrument of foreign policy. Therefore, interpretation will remain an issue of primarily domestic concern. Even though the envisaged statute would be much clearer than the current order, it would inevitably be subject to some degree of interpretation. In the case of a statute, Congress, and possibly the courts, would be

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the primary interpreter. With an executive order, on the other hand, the Executive Branch has the ultimate authority to render definitive interpretations.299 The question then is one of determining which branch should have greater control over application of the prohibition. This is a nagging question. Certainly the CIA abuses of the past would argue for greater congressional control. Nevertheless, in the long run it is probably the Executive Branch that should have the final say in interpretation and implementation. By its very nature, Congress is a highly politicized institution. In the field of national security, politicization is usually counterproductive, especially when tactics, not overall policy, are at issue. It is one thing for Congress to articulate the nation’s broad goals in foreign affairs. But the issue of specific targeting is a very small component of the use of force. It should be for the Executive Branch, operating within the confines of international law, to determine when the tactic is necessary. This is not to suggest that Congress should not play a role in determining when targeting specific individuals is acceptable. Congressional oversight is an appropriate and valuable component of the democratic process, and an elaborate system of oversight has, in fact, come into being to safeguard against Executive Branch abuses. It is in this capacity that Congress should involve itself with issues concerning assassination. A More Precise Executive Order Given the inappropriateness of leaving matters of tactics to Congress, the best approach is to rescind the current executive order and issue a new, more comprehensive one that precisely delineates the boundaries of permissibility. In particular, the ban should not be buried, as the present one is, within the broader US Intelligence Activities Order. The topic is sensitive enough to merit separate attention. The contents of the proposed order would be analogous to those recommended above with regard to the hypothetical assassination convention. Basically, the order would apply only to international operations that fall short of armed conflict, be limited to targets occupying specified positions, and be inapplicable in situations where the use of deadly force is otherwise authorized under international law. 7.7.2.4 Assassination in the Law of Armed Conflict Finally, reform proposals must address the issue of assassination in the law of armed conflict. Currently, the prohibition serves no purpose, since an act constituting assassination would be prohibited in any event by the norm against the use of perfidy. The law governing who may be a lawful target serves as an additional safeguard against over-zealous individual targeting. Mention of assassination in 299

On the related topic of the power to interpret treaties, see Reisman 1990; Koh 1990; Koplow 1989.

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the domestic manuals governing the law of armed conflict is, therefore, superfluous and unnecessarily confusing. It creates the impression that assassination is somehow qualitatively different from perfidy. It is not; instead, it is only one example of that already prohibited act. Therefore, all mention of assassination’ as a specific genre of act should be deleted in future editions of the Air Force and Army law of armed conflict manuals, with treacherous killing cited as merely an example of a tactic involving perfidy. Indeed, it is interesting to note that the Hague Regulations speak of treacherous killing, not assassination; only when that provision was incorporated into the current manuals did the term assassination emerge.300 Does this recommendation run counter to the earlier assertion that explicit prohibitions on assassination serve an educative and deterrent function? Not when one recalls that in situations short of armed conflict, killing is the exception rather than the rule. Because killing is an exceptional act, it is critical to emphasize repeatedly the narrow permissibility of the use of force to resolve international disputes. When individuals are not sensitized to the prescriptions, the prescriptions should be brought to their attention. Since individual peacetime killing is seldom used, decisions to employ the technique are made at the highest levels of government with the benefit of quality advice from experts. This mitigates the risk of misinterpretation, particularly if the proposed format were adopted. The problem with the current ban is not that it overwhelms policy makers, but rather that it simply provides little guidance as to what it encompasses. On the other hand, war is about killing, in which simplicity is an invaluable virtue. Complex sets of norms governing the conduct of hostilities will inevitably lead to poor decisions with disastrous consequences. The prohibition on assassination in the manuals is a classic example of this problem. Even without considering the current assassination prescriptions, determining whether an individual can be targeted is basically a two-step process. First, a planner must ascertain if that individual is a lawful target. Then the planner must determine whether the means selected to execute the mission violate any specific prohibition. Since an act permissible under these two tests will never be assassination, an assassination analysis would only complicate matters.

7.7.3 Final Thoughts This chapter has attempted to identify the parameters of both international and domestic law regarding assassination as an instrument of state policy. Analysis reveals that the various prescriptions are imprecise, confusing, and occasionally

300

Hague IV, supra note 7, Article 23(b); Air Force Manual, supra note 19, } 8–6d; Army Manual, supra note 19, Article 31.

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counter-productive. Much remains to be done before we can be assured that the prohibitions on assassination serve as effective guides to permissible actions. It is essential to focus constantly on the ultimate goals sought by international law. Two of them are central: minimum and optimum world order identified by the New Haven school of international law.301 Minimum world order implies the search for a world community that does not resort to coercion and violence. Failing that, international law should at least serve as an effective restraint on their wrongful use. Optimum world order involves the complementary goal of shaping and sharing values. These values include respect, power, enlightenment, wellbeing, wealth, skill, affection, and rectitude. In other words, international law should serve man’s hierarchy of needs, from survival to self-actualization. It is only after evaluating specific targeting in terms of world order that the decision to go forward can be made. True, the killing must be legal as understood in the existing operational code. Obviously, it must also be both practical and welladvised. Yet if the operation increases the likelihood of coercion or violence or results in a net loss of values for the world community, then it must be rejected. At the same time, when a killing comports with the operational code, is reasonable from the practical perspective, and fosters world order in a significant way, then policymakers have a moral responsibility to consider it. These are difficult decisions, albeit more easily made while hostilities are ongoing. They involve a balancing of costs—the cost of a life against the benefits of ending that life. Although it is hard to justify not targeting one culpable individual to save many innocent lives, the decision becomes more complex when long-term effects are considered. Hopefully, policy makers will make decisions concerning the killing of human beings with the propriety that world order demands.

Abbreviations OAU

Organization of African Unity

FSIA

Foreign Sovereign Immunities Act

ICRC

International Committee of the Red Cross

PLO

Palestine Liberation Organization

301 The New Haven approach to international law was developed by Harold Lasswell and Myres McDougal at Yale Law School. For a discussion of this method, see Chen 1989, pp. 14–22; Falk 1970, pp. 7–40; Schmitt 1990b; Tipson 1974; Moore 1968.

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Hersh SM (1987) Target Qadhafi. NY Times, 22 February 1–20 Holland TE (1904) The laws and customs of war on land, as defined by the Hague Convention of 1899 Jenkins B (1986) Assassination: should we stay the good guys? LA, Times, 16 November Jobst III V (1941) Is wearing of the enemy’s uniform a violation of the laws of war?, 35 AM J Int L 435 Kelly JB (1965) Assassination in war time, 30 Mll L Rev 101 Kempster N (1986) Reagan calls raid a victory, expects struggle to cantinue. LA, Times, 16 April Koh HH (1990) The president v. the senate in treaty interpretation: what’s all the fuss about? 15 Yale J Int L 331 Koplow DA (1989) Constitutional bait and switch: executive reinterpretation of arms control treaties, 137 U PA L Rev 1353 Kunz JL (1947) Individual and collective self-defense in article 51 of the Charter of the United Nations, 41 AM I Int L 872:877 Lawrence TJ (1923) Principles of international law, 7th edn, pp 540–541 Livingstone N (1991) Do we decapitate Iraq’s government, or ‘‘keep it clean’’? Newsday, January 28 Marcus R and Devroy A (1989) Bush faults rules governing covert action against Noriega, Wash. Post, October 23 Matheson MJ (1987) The United States position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions, 2 AM. U. J Int L and Pol’y 419 May L (1988) Reagan denies he gave CIA a ‘‘license to kill’’. LA Times, 6 October Mcdougal MS and Feliciano F.P. (1961) Law and minimum world public order 72:521–530 Moore JB (1906) The digest of international law, the Caroline case, vol 2 Moore JN (1968) Prolegomenon to the jurisprudence of Myres S. McDougal and Harold Lasswell, 54 Va L Rev 662 More T (1516) Utopia 109 1. Churton C (ed), Oxford University Press 1904 Newman D and Van Geel T (1989) Executive order 12,333: the risks of a clear declaration of intent, 12 Harv J L Pub Pol’y 433:434 Nys E (1911) Francis Lieber—his life and work, 5 AM. J lnt’l L 84 Ottaway DB and Oberdorfer D (1989) Administration alters assassination ban, Wash. Post, 4 November Parks WH (1989) Memorandum of law: executive order 12333 and assassination, Army Law, 1989 December Peterzell J (1989) Reopening a deadly debate, Time, 30 October Powers T (1989) The Perils of Covert Policy. LA Times, October 29 Quinn MC (1986) Reagan Says U.S. Didn’t Try to Kill Khadafy, UPI, April 18, available in Lexis Nexis Library, UPI File Reisman WM (1973) Humanitarian Intervention to Protect the Ibos, In: Humanitarian intervention and the United Nations 167, Robert Lillich (ed) Reisman WM (1979) Folded lies: bribery, crusades, and reforms 15–16 Reisman WM (1984) Coercion and self determination: construing charter article 2(4), 78 AM J lnt L 642 Reisman WM (1986) Termination of the United States Declaration Under Article 36(2) of the Statute of the International Court, In: Anthony Clark Arend (ed) The United States and the compulsory jurisdiction of the International Court of Justice 71 Reisman WM (1987) Jurisprudence: understanding and shaping law 23–35 Reisman WM (1990) Necessary and Proper: Executive Competence to Interpret Treaties, 15 Yale J Int L 316 Reisman WM and Baker JE (1992) Regulating covert action: practices, contexts and policies of covert coercion abroad in international and American law 23 Reisman WM and Silk J (1988) Which law applies to the Afghan conflict? 82 AM J Int L 459 Roberts GB (1985) The new rules for waging war: the case against ratification of Additional Protocol I, 26 VA J Int L 109:148–150 Root E (1913) Francis Lieber, 7 AM J lnt L 453

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Schachter O (1984) The right of states to use armed force, 82 Mich L Rev 1620:1634–1635 Schindler D and Toman J (1973a) Introductory note to Brussels Conference of 1874, In: Schindler D and Toman J, (eds) The laws of armed conflicts 3 (1863) Schindler D and Toman J (1973b) Introductory note to Francis Lieber, instructions for the government of armies of the United States in the field, In: Schindler D and Toman J, (eds) The laws of armed conflicts 3 (1863) Schindler D and Toman J (1973c) The laws of armed conflicts 3 (1863) Schmitt E (1990a) Confrontation in the Gulf; air force chief is dismissed for remarks on Gulf plan NY Times, September 18 Schmitt MN (1990b) New haven revisited: law, policy and the pursuit of world order, 1 US Air Force Acad J Leg Stud 185 Sofaer AD (1985) The political offense exception and terrorism, reprinted in 85 Dep’t St Bull 58, 60 (December 1985) (statement of Abraham D. Sofaer, Legal Adviser of Department of State, before Senate Foreign Relations Committee) Sofaer AD (1987) The position of the United States on current law of war, 2 AM U J Int L Pol’y 460 Sofaer AD (1989) Terrorism, the law, and the national defense, 126 Mil L Rev 89:117 Spaight JM (1911) War rights on land 86 Tesón FR (1988) Humanitarian intervention: an inquiry into law and morality Tipson FS (1974) Note, The Lasswell-McDougal enterprise: toward a world public order of human dignity, 14 Va J Int L 535 UN Dep’t of Pub lnfo (1985) The blue helmets: a review of United Nations peace-keeping 215–217 Van Bynkershoek C (1737) A treatise on the law of war 2–3, Peter S. Du Ponceau (ed) 1810 Vattel E De (1758) 2 The law of nations or the principles of natural law (Charles Fenwick trans., Carnegie Institution 1916) Wise D (1989) No license to kill, Newsday, October 22 Woodward B (1986) State department plan urged Libya coup, Wash Post, October Woodward B and Pincus W (1988) CIA reportedly got ‘‘license to kill’’ terrorists. LA Times, 5 October

Chapter 8

Green War: An Assessment of the Environmental Law of International Armed Conflict Victory smiles upon those who anticipate the changes in the character of war, not upon those who wait to adapt themselves after they occur.1

Abstract During the First Gulf War of 1990–1991, Iraqi forces engaged in activities, including dumping oil into the Persian Gulf and igniting Kuwaiti oil wells, which drew global attention to the environmental consequences of warfare. This chapter identifies and assesses the international legal regime governing the environmental impact of armed conflict. It begins with an examination of the historical record of environmental damage during warfare. The prescriptive norms—including peacetime, customary and treaty prescriptions—governing such damage are next catalogued and analyzed. Concluding that the existing law fails to adequately address environmental consequences that result from hostilities, the author suggests how the international community should respond to its shortcomings.

Contents 8.1 Framing the Issues.......................................................................................................... 8.2 How Did We Get Here? ................................................................................................ 8.2.1 The Environment and Warfare Before Vietnam ............................................... 8.2.2 Vietnam and Its Aftermath................................................................................. 8.2.3 The Gulf War...................................................................................................... 8.2.4 The Post-Gulf War Period..................................................................................

362 368 368 370 375 383

Previously published in 22 Yale Journal of International Law 1 (1997). 1

Office of Air Force History 1983 (quotation attributed to Air Marshall Guilio Douhet)

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_8,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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8.3 Where Are We?.............................................................................................................. 8.3.1 Peacetime Prescriptions ...................................................................................... 8.3.2 Customary Jus in Bello ...................................................................................... 8.3.3 Treaty Based Jus in Bello .................................................................................. 8.3.4 Responsibility Under the Jus in Bello ............................................................... 8.4 Where to from Here? ..................................................................................................... 8.4.1 Appraising the Present Law ............................................................................... 8.4.2 What is to be Done?........................................................................................... 8.5 Conclusion ...................................................................................................................... References................................................................................................................................

398 398 415 427 457 461 461 467 476 477

8.1 Framing the Issues As the twenty-first century approaches, the methods, means, and effects of warfare are in the midst of a profound revolution.2 This revolution is evident, for instance, in the new focus of the U.S. armed forces on military operations other than war (MOOTW),3 in revised tactics designed to exploit stealth technology, and in a probably healthy obsession with the potential for information warfare.4 One of the most visible aspects of this revolution is a growing interrelationship between war and the environment, reflected both in armed conflict’s impact on nature and in the use of the environment as a tool of warfare. While these are not novel phenomena in war, the potential scope of damage and the next generation of environmental weapons that science is making possible are unprecedented. There is little question that this quantitative and qualitative evolution merits characterization as ‘‘revolutionary.’’ This chapter identifies and assesses the law that might govern activities bearing on the environment during hostilities.5 Lack of consensus on the content of the relevant law highlights the importance of this task. Prior to considering the

2 For an interesting discussion of what constitutes a ‘‘revolution in military affairs,’’ see Krepinievich 1995. Throughout this chapter, the terms ‘‘armed conflict’’ and ‘‘war’’ will be used interchangeably. Some scholars draw a distinction between the two, reserving the term ‘‘war’’ for those situations in which a formal declaration has been made. This distinction serves little purpose given the scope and scale of post-World War II conflicts and the lack of a declaration of war in the vast majority of them. 3 For a basic description of MOOTW, see Joint Chiefs of Staff 1995a, ch. V. 4 Information warfare has generated a flurry of activity in the Department of Defense. For an introduction to the subject, see Libiclo 1995, at 1; see also Joint Chiefs of Staff 1995b. 5 I first addressed this topic in tentative form in a comment. See Schmitt 1996. Though parts of this chapter draw directly on the previous piece, it builds on my initial thoughts and expands the focus of consideration beyond core jus in bello substantive prescriptions.

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prescriptive environment proper, it is necessary to explore the genesis and evolution of the current norms. Therefore, Sect. 8.2 examines the history of environmental damage during warfare, as well as the legal responses thereto. A historical survey is an essential first step in any comprehensive legal analysis, for law is both contextual and directional. It is contextual in that it is understood and applied based upon the social, political, and economic environment in which it operates.6 This is certainly the case with the environmental law of war, which is primarily the product of two historic events—Vietnam and the Gulf War. At the same time, law tends to be directional; it evolves over time in distinct directions.7 Seldom spontaneous or random, these trends are often identifiable and occasionally predictable. The environmental law of war demonstrates several trends, one of which—a growing tendency to value the environment for more than merely what it offers us—has enormous potential to complicate and transform the law. Once context and direction are established, Sect. 8.3 proceeds to catalogue and analyze the current law pertaining to the environment. For analytical clarity, it is grouped into three categories: peacetime prescriptions, customary law, and treaties. The section begins by exploring whether peacetime environmental prescriptions remain intact during armed conflict, and, if so, between whom and in what circumstances. Since peacetime environmental law continues to evolve, it is less useful to catalogue substantive norms than to ascertain the criteria for their applicability during hostilities. Analysis of the law of war follows. Customary law, which lies at its core, is examined to determine when traditional norms can be interpreted as providing environmental safeguards. An evaluation of treaty law— not only the sparse collection of environment-specific provisions, but also its broader nonspecific components—completes the review of prescriptive norms. Throughout Sect. 8.3, one should bear in mind that the assorted relevant prescriptions do not operate autonomously; jurisprudential vacuums exist only in theory. Instead, the various components of the law, whether customary or treatybased, operate together to create a prescriptive environment. It is that environment that bounds warfare. Thus, treaty provisions may be interpreted by resort to customary law principles; treaty law may be deemed declarative of customary law and thereby clarify it; customary law may fill voids in applicable conventions; or custom and treaty law may operate synergistically to create tiers of protection for

6 This contextuality is apparent in the growing willingness of the international community to subordinate sovereignty to humanitarian interests in the post-Cold War, post-bipolar environment. The humanitarian operations in Somalia, Iraq, or Bosnia would not have been possible had the Cold War continued. On contextuality and the use of force, see Schmitt 1994, pp. 110–115. 7 An excellent example of this evolution of law is the erosion of neutral (as opposed to belligerent) interests in the law of naval warfare. The erosion has resulted from both technological advances in the means of warfare and the increasing interdependency of the international economy.

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the environment.8 Even when the law has been sorted out, it remains necessary to determine who has consented to be bound by what law in relation to whom. It is also necessary to ask how the affected international actors understand the law and how they intend to implement its standards. In this regard, the law of war manuals that the world’s militaries employ are particularly useful. Section 8.3, therefore, discusses not only which norms govern damage to the environment during armed conflict, but also how they interact in theory and practice. It is in this dynamic that the drama of the law is to be found. While Sect. 8.3 highlights various strengths and weaknesses of the prescriptive regime’s individual components, Sect. 8.4 assesses the current state of the law. As will be seen, most commentators judge the law to be adequate but fault lax enforcement and weak dissemination for the impunity with which rogue leaders have abused the environment in this decade. This chapter tests their characterization both from the perspective of adequate environmental protection and from that of usable normative guidance for policymakers and warfighters. Ultimately, it concludes that, despite assertions to the contrary, the emperor is rather scantily clad. The relevant law is difficult to apply in practice, is definitionally flawed, and lacks internal coherence. Equally distressing is a growing tendency to view the environment as wholly distinct from human existence. This trend may lead us to sacrifice compelling human values on the altar of formalistic environmentalism. Lest this criticism be labeled gratuitous, Sect. 8.4 also suggests how the international community, and particularly the U.S. armed forces, should safeguard the environment during armed conflict. There could not be a more propitious time to consider the options, as the U.S. military is currently drafting a new multiservice law of war manual. Since many of the world’s armed forces look to the United States in military affairs, this manual is destined to be enormously influential on an international scale. Therefore, to help translate theory into reality, Sect. 8.4 outlines the environmental factors that the drafters of the new U.S. law of war manual should consider. 8

See infra Sect. 8.3.3.3 (discussing Protocol 1). For example, proportionality is a classic law of war principle intended to be codified in Protocol 1. See Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, U.N. Doc. A/32/144, 16 I.L.M. 1391 [hereinafter Protocol I]. Thus, its customary law meaning can be invoked in exploring the Protocol I restatement of the concept. On the other hand, the United States has not ratified Protocol I, but considers many of its provisions to be declarative of customary international law. See infra note 318 and accompanying text. Therefore, it remains a useful source for clarification of customary law principles. Furthermore, conventions are often drafted narrowly. Consider the Protocol I prohibitions on attacking dams, dikes, and nuclear power generating stations. See Protocol I, supra, article 56. Its drafters debated whether this list is illustrative or exhaustive, ultimately deciding on the latter. However, this does not mean that other types of targets are fair game in article 56 situations. Customary principles such as proportionality and necessity will continue to govern such attacks. Moreover, the various types of law may intersect in terms of quantum of damage or nature of the target. This is particularly true in the environmental context, for some of the relevant conventional law has been criticized as setting an excessively high threshold for damage before a proscription applies. Protocol I is an excellent example. See infra note 353 and accompanying text.

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Before setting off on these endeavors, however, it is perhaps useful to delineate the boundaries of my inquiry. First, this chapter does not analyze arms limitation, arms proliferation, and test ban treaty regimes.9 The issue at hand is one of use, not possession. An assessment of environmental prescriptions operative during noninternational armed conflict is likewise absent.10 My goal is to consider only those hostilities that are truly international in scope. Furthermore, this chapter does not address the jus ad belium issue of when an ‘‘attack’’ on, or use of, the environment constitutes a resort to force in violation of the U.N. Charter.11 Instead, analysis of

9

Many of these treaties bear on the relationship between war and the environment because they limit or prohibit environmentally destructive weapons. See, e.g., Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, article IV, 18 U.S.T. 2410, 610 U.N.T.S. 205 (banning placement in orbit of nuclear weapons or weapons of mass destruction); Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, article 1, 14 U.S.T. 1313, 480 U.N.T.S. 43; Antarctic Treaty, June 23, 1961, article I, para I, 12 U.S.T. 794, 402 U.N.T.S. 71 (prohibiting any weapons testing in Antarctica). 10 The distinction between international and noninternational armed conflicts is not always clear. Protocol II Additional to the Geneva Conventions defines noninternational armed conflict ‘‘as armed conflicts… which take place in the territory of a [party to the Convention] between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations’’. Additional Protocol II, article 1, para 1, U.N. Doc. A/32/144, Annex 11 (1977), reprinted in 16 I.L.M. 1442, 1443 [hereinafter Protocol II]. International armed conflict is that which arises between states (or other subjects of international law). See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, article 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 (‘‘[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if a state of war is not recognized by one of them.’’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, article 2, 6 U.S.T. 3217, 75 U.N.T.S. 85 (same); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, article 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 (same); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, article 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 (same) [hereinafter Geneva Convention IV]. Additional Protocol I, which supplements the Geneva Conventions with regard to international armed conflict, simply refers back to the common article 2 of the Geneva Conventions. See Protocol I, supra note 8, article 1, para 3. In a somewhat controversial provision, Protocol I includes as international armed conflicts ‘‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.’’ Id. article 1, para 4. Note that ‘‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’’ are not armed conflict—either international or noninternational. See Protocol II, supra, article 1, para 2. 11 Article 2(4) of the U.N. Charter provides that ‘‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’’ U.N. Charter article 2, para 4. The Charter does authorize the use of force when pursuant to a Security Council determination that it is ‘‘necessary to maintain or restore international peace and security,’’ id. article 42, or required in individual or collective selfdefense, see id. article 51.

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the jus in bello (i.e., how, not when, force may be employed) dominates the study. Finally, this chapter makes no attempt to evaluate comprehensively the legality of individual environmentally harmful episodes of warfare; analysis and commentary focus instead on the law itself.12 Clarifying definitions, particularly that of the term ‘‘environment,’’ is equally important. As used here, ‘‘environment’’ indicates those conditions, circumstances, substances, and organisms that affect the global ecosystem. Physical phenomena such as weather and the permeability of the ozone layer are examples of ‘‘conditions,’’ whereas the course of a river and the existence of a lake illustrate the term ‘‘circumstances.’’ Food, timber, soil, water, and oil exemplify ‘‘substances,’’ and ‘‘organisms’’ include both plant and animal life. The concept of the ‘‘environment’’ also extends to usability. For example, spreading mines or bomblets through an area can render it unusable; such denial of use is the functional equivalent of damage. While the need to define the environment before evaluating prescriptions governing harm to it is self-evident, far less obvious is the importance of identifying the motivations underlying environmental protection. The issue has been addressed only sparingly in the literature, primarily within governmental fora and at conferences. Interestingly, those who consider it tend to arrive at very different conclusions regarding the law’s adequacy than most of their colleagues.13 Therefore, it is useful to alert the reader early on to the effects of this distinction. There are basically two approaches: ‘‘utilitarian’’ and ‘‘intrinsic worth.’’14 The prevailing one values the environment for what it offers humankind—food, shelter, fuel, and clothing, for example. This anthropocentric approach focuses on the environment’s ability to make life possible—and to take it away. Beyond providing survival benefits, the environment merits protection because of its impact on the quality of human life. For instance, natural preserves or endangered species must be safeguarded lest we be deprived of their aesthetic value. Reduced to basics, anthropocentrism displays a strong utilitarian flavor. On the other hand, the environment can be viewed as possessing intrinsic value, that is, value that is independent of the uses for which human beings may exploit it. This value is not in lieu of anthropocentric value but in addition to it. For intrinsic valuation advocates, determining the environment’s contribution to human existence is only half the story when assessing whether its destruction is justifiable and lawful. Calculating the intrinsic value of the environment’s damaged component is equally necessary. Of course, intrinsic value measurements are inherently difficult since the point of departure is not the human self. Proponents, 12

For instance, the question is not whether the Iraqis violated the law of armed conflict, but rather what law governs the types of activities in which they engaged. 13 The most notable example is Wil Verwey, Chairman of the National University of Groningen (Netherlands) Department of International and Constitutional Law. See, e.g., Verwey 1994, p. 49; Verwey 1995a, pp. 39–40; Verwey 1995b. The latter paper and all others presented at the Symposium on the Protection of the Environment During Armed Conflict and Operations Other Than War, were published in Grunawalt et al. 1996 [hereinafter NWC Symposium Papers 2005]. 14 For an interesting discussion of these two approaches, see Drucker 1989, pp. 136–140.

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however, might argue that through consideration of such factors as ecosystem function or species regeneration capacity, intrinsic value is sufficiently discernible to merit inclusion in legal formulae. The distinction between anthropocentric and intrinsic value is, borrowing from the law of evidence, both an issue of weight and one of admissibility. At heart, laws of war are often about balancing competing interests. Whether one operates from within an anthropocentric or intrinsic value cognitive prism determines the relative weight accorded competing interests. An even more basic question is whether intrinsic valuation has a place in the law of war at all—whether it is admissible, if you will. Thus, this study searches for evidence of the distinction and, if one exists, its implications. It concludes by evaluating the appropriateness of any trends identified. It might be assumed that the anthropocentric/intrinsic divide, or the environment and warfare issue more generally, is highly politicized.15 In fact, there are some predictable distinctions among those who have taken positions on the matter. For instance, organizations such as Greenpeace tend to advocate a higher standard of environmental protection than do others. However, all concerned basically agree that there must be heightened environmental safeguards during armed conflict. Given this agreement, one aspect of the debate centers on how best to effect those safeguards—through new law or through improved enforcement mechanisms. The debate over the anthropocentric/intrinsic division is much more fundamental; it centers on how to balance worthy values that sometimes conflict. This debate cuts across traditional political lines and international boundaries. For example, the International Committee of the Red Cross (ICRC), an organization dedicated to mitigating the impact of warfare on humanity, finds itself allied with hard-core warfighters in opposing any movement away from anthropocentrism. The ICRC fears that applying the intrinsic value approach may decrease human protection, whereas warfighters tend to be concerned that it may distort proportionality calculations and thereby immunize valid military objectives. Nevertheless, that the ICRC and warfighters arrive at similar conclusions indicates that political dimensions to the issue have minimal practical effect. Paradoxically, the politicization that does occur is often the result of ideological prejudices. Thus, an organization like Greenpeace evokes an almost visceral response from some parties that is entirely disproportionate to the actual difference in their respective views on the subject. Given the identity of the participants, observers expect politicization of the issues. In fact, the issues here are often less politicized than the participants. With the boundaries of inquiry set, and with the reader sensitized to the role of cognitive perspectives, analysis may proceed. As it does, reflect on the following pervasive questions: Does the law adequately protect the environment during international armed conflict? If so, does the law sufficiently preserve and foster

15

Peacetime international environmental law is much more politicized. For instance, lesser developed states often oppose constraints on industrialization that might retard development. See infra note 215 and accompanying text.

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important human interests? Does the present law facilitate the balancing of environmental interests with other interests during warfare? Does it adequately deter unacceptable environmental damage during warfare, and, if not, why not? To what extent are the prescriptions sufficiently precise to guide policymakers and warfighters? Finally, if the law falls short, how should its shortfalls be remedied? Bearing these questions in mind, I now turn to the historical context that informs the environmental law of war.

8.2 How Did We Get Here? 8.2.1 The Environment and Warfare Before Vietnam That war damages the environment is a truism. So, too, can the forces of nature serve as a powerful weapon during war.16 In the seventeenth century, for example, the Dutch destroyed dikes to flood their lowlands and stem the advance of their enemies, thereby devastating vast tracts of farmland. In 1938, during the second Sino-Japanese War, the Chinese adopted an identical tactic when they destroyed the Huayuankow dike on the Yellow River to halt the Japanese invaders. Although a short-term military success, the operation killed thousands of civilians and flooded millions of acres of cultivated land. In the next decade, the Germans employed a similar technique by flooding a number of areas in the Netherlands to slow the Allied advance eastward. The European theater also witnessed repeated attacks on hydroelectric dams. To cite only one example, raids on the Mohne and Eder dams in May 1943, although effectively depriving the Ruhr industrial complex of water and power, killed more than 1300 civilians and shut off drinking water and energy to the four million Germans in the region. Dam attacks continued during the Korean and Vietnam conflicts.17 16

An extensive discussion of the history of the environmental effects of warfare can be found in Westing 1980. In particular, refer to Table 1.2, which gives a selection of ‘‘ecologically disruptive wars.’’ Id. at 14–19 tbl.1.2. 17 The foregoing events are described in many sources. Of particular note is their inclusion in the ICRC Commentary to article 56 of Protocol I. See International Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 667 (Yves Sandoz et al. 1987) [hereinafter ICRC Commentary]. The raid on the Mohne dam was poignantly described by Wing Commander Guy Penrose Gibson of the RAF: As Gibson flew his Lancaster up and down the dam, he saw the water of the dammed lake rising ‘‘like stirred porridge in the moonlight, rushing through a great breach.’’ A few minutes later, he reported: ‘‘The valley was beginning to fill with fog and… we saw cars speeding along the roads in front of this great wave of water which was chasing them… I saw their headlights burning and I saw water overtake them, wave by wave, and then the color of the headlights underneath the water changing from light blue to green, from green to dark purple until there was no longer anything except the water bouncing up and down.’’ McCullough 1966, at 418.

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This century witnessed the first major environmental damage caused by the destruction of oil facilities. In a notable chapter of the First World War, British Colonel Norton Griffiths destroyed Romanian oil fields, the richest in Europe, to prevent them from falling into enemy hands when the Central Powers invaded.18 Romanian oil was again a target in the Second World War. Most noteworthy were the 1943 air raids on the oil producing center at Ploesti. Memorable for the feats of airmanship involved in the 1500 mile flight, much of it through enemy fighter cover, the raids significantly damaged refineries and oil tanks fueling the Reich’s war machine. As might be imagined, all such attacks wrought extensive environmental damage. Of course, it was in the Second World War that the only instances in history of wartime environmental destruction by nuclear weapons took place when U.S. aircraft bombed Hiroshima and Nagasaki in August 1945. Tens of thousands died immediately, with thousands of others doomed to suffer the effects of radiation for decades to come. The target area was reduced to a virtual wasteland.19 That those weapons are dwarfed by modern nuclear capabilities emphasizes the environmental apocalypse that their widespread use would ensure today. Despite the destructiveness of such events, the international community paid scant attention to their environmental consequences. The limited expressions of concern were from a purely anthropocentric perspective, as demonstrated by the failure to mention the environment in the four Geneva Conventions promulgated in the immediate aftermath of World War II. In part, this may have been because, as Geoffrey Best has perceptively noted, until the Second World War, man’s destructive capabilities primarily threatened the anthropogenic environment.20 It was also surely the result of a failure to understand the complex interrelationships between human activities and the environment, the fragility of the environment, or even its finite nature. Until the war in Vietnam, whatever protection the environment enjoyed under international law was purely coincidental.

18 19

See Roberts 1996, manuscript at 5 (citing Cruitwell 1934, at 297–298). One eyewitness of the explosion in Hiroshima described the destruction: Within a few seconds the thousands of people in the streets and the gardens in the center of the town were scorched by a wave of searing heat. Many were killed instantly, others lay writhing on the ground, screaming in agony from the intolerable pain of their burns. Everything standing upright in the way of the blast, walls, houses, factories, and other buildings, was annihilated… Horses, dogs, and cattle suffered the same fate as human beings. Every living thing was petrified in an attitude of indescribable suffering. Even the vegetation did not escape. Trees went up in flames, the rice plants lost their greenness, the grass burned on the ground.

McCullough 1966, at 616. See Best 1988, pp. 18–20.

20

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8.2.2 Vietnam and Its Aftermath During the Vietnam conflict, the environment began to play a prominent role in considerations of warfare’s means and methods.21 For military planners, Vietnam presented unique challenges. United States and South Vietnamese forces faced both regular North Vietnamese Army troops who had infiltrated the South and indigenous guerrilla units—the Viet Cong—supplied via a complex network of trails from the North and from Cambodian and Laotian sanctuaries. Among the factors that contributed to the Communist forces’ ultimate success was an ability to blend into the surrounding vegetation and forests whenever threatened. Operating from these areas, they effectively employed small unit tactics to wear down the U.S. and South Vietnamese forces. While this did little to ‘‘win the war’’ militarily, it drove the political cost up measurably, especially in the United States. Understandably, U.S. forces worked hard to defeat these tactics.22 One approach was to destroy forests and dense vegetation to deny the enemy cover, mobility, logistic support, and, in some cases, sustenance. U.S. forces utilized two techniques—beyond merely bombing the targeted zones with conventional munitions (an especially ineffective and inefficient method)—to accomplish this end. First, they dropped herbicides over enormous areas of South Vietnam, both in wooded areas (86%) and on crop lands (14%).23 By one estimate, approximately one-tenth of South Vietnam was sprayed during the war.24 At the same time, U.S. troops used heavy tractors with large blades attached—Rome plows—to cut through vegetation and trees. Initially, the effort concentrated on clearing land alongside roads to minimize the risk of ambushes. However, in 1967 large tracts began to be leveled; by the end of the war, Rome plows had cleared nearly threequarters of a million acres. Though more labor intensive than spraying, plowing was more effective in rendering an area unusable. As might be expected, both techniques caused extensive damage to the flora (the military objective) and fauna of the region. In particular, the operations led to massive soil erosion in Vietnam’s

21

Probably the best account of the war’s environmental impact is in Westing 1976. Perhaps the best known of the attempted remedies was the failed Strategic Hamlet Program, an effort to deny the enemy sanctuary in villages throughout the South by securing the allegiance of the local villagers. Ultimately, this effort failed, in no small part due to the corruption and lack of commitment of the United States’ South Vietnamese allies. An interesting description of the counterinsurgency effort in South Vietnam from the perspective of senior South Vietnamese officers can be found in Vien and Khuyen 1980, pp. 1–84. 23 See Westing 1976, at 27. Three types of herbicides were used: Agents Orange and White operated to interfere with plant metabolism, while Agent Blue dehydrated plants. The agents were generally dispersed from the air by C-123 aircraft. However, helicopters and even truck-and boatmounted sprayers were also used. See id. at 24–27. 24 Approximately 2% of Indochina was sprayed, though most such operations were limited to South Vietnam. In the South, the bulk of the defoliation efforts were centered in Military Region Ill, which surrounded Saigon. Some 30% of this area was sprayed at least once. See id. at 28. 22

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hilly terrain. The effect on animal habitats was especially severe, for the vegetation that regenerated proved less capable of supporting animal life than in the past.25 Between 1963 and 1972, the Air Force also seeded clouds in operations designed to lengthen the rainy season.26 Since the roadways were unpaved, U.S. forces hoped that extended rainfall would soften the road surfaces and cause them to collapse, thereby slowing movement along the Ho Chi Minh trail.27 Reportedly, a secondary goal was to degrade enemy surface-to-air missile radar capabilities.28 Disagreement exists over the success of these operations.29 Nevertheless, there is little doubt that increasing rainfall can cause negative environmental consequences, including increased soil erosion, destruction of vegetation, and disease among animals. For the first time, the environmental impact of military operations drew domestic and international attention. Multiple factors contributed to this new phenomenon. A general increase in environmental awareness coincided with the Vietnam War to help focus public attention on the environmental effects of the war. So, too, did antiwar sentiment. In a sense, the environmental damage provided a rallying point—one that did not smack of purely political motivation—for opposition to the conflict. These factors came together as war began to be brought into the living room nightly through television. For the first time in history, the 25

See Carruthers 1993, p. 40. Arthur Westing points out that the spraying affected not only the autotrophic aspect of the ecosystem, but also the heterotrophic links (i.e., those beyond the first link in the food chain). In great part, this occurred because much animal activity takes place in the upper reaches of vegetation, which were most severely affected by the spraying. See Westing 1976, at 32. Westing describes the destruction resulting from the spraying, see id. at 28–40, and from the plowing, see id. at 47–49. He also gives a general discussion of the overall damage. See id. at 63–82. 26 On March 20, 1974, the Department of Defense conducted a top secret briefing before a Senate Subcommittee in which the Department described the program. This briefing, since declassified, is reprinted in Environmental Modification Treaty: Hearings on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Before the Senate Comm. on Foreign Relations, 95th Congo 101 (1978) [hereinafter TS Brief]. 27 See id. at 102. 28 Although this intent was not described in the TS Brief, it was noted by Seymour Hersch. He cited an unidentified U.S. government source as stating that a method of treating clouds with an acid chemical that would foil the operation of North Vietnamese radars had been developed. Other purposes of the rainmaking included, according to the Hersch report, providing ‘‘cover for infiltration of South Vietnamese commando and intelligence teams’’; ‘‘serving as a ‘spoiler’ for North Vietnamese attacks and raids’’; ‘‘altering or tailoring the rain patterns over North Vietnam and Laos to aid United States bombing missions’’; and ‘‘diverting North Vietnamese men and material from military operations to keep muddied roads and lines of communication in operation.’’ Hersch 1972, at A1. 29 The Air Force asserted that rainfall increased by 30% in some locations, see TS Brief, supra note 26, at 115, but admitted that ‘‘[w]hile this program had an effect on the primitive road conditions in these areas, the results were certainly limited and unverifiable.’’ Id. at 120. Arthur Westing noted that ‘‘[a]lthough the military seemed satisfied with the level of success of its weather-modification operations in Indochina, a dispassionate arbiter would be hard put to recognize a basis for this optimism.’’ Westing 1976, at 56 (citation omitted).

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general public witnessed the consequences of a war fought halfway around the globe. Not only did the conflict spotlight the fact of environmental damage, but it also raised questions of its legality. Indeed, the State Department’s legal staff recommended that the defoliation operations be limited to the territory of South Vietnam and Laos, lest they be interpreted as precedent for use by others elsewhere.30 In South Vietnam, the operations would have negligible precedential effect because the South Vietnamese consented to application of the chemicals. Despite official sensitivity, environmental legal norms were still in a nascent stage.31 Even at this late stage, no law of war treaty mentioned the word ‘‘environment.’’ Predictably, calls for new law were soon heard. For example, Senator Claiborne Pell proposed a draft treaty to ‘‘prohibit and prevent, at any place, any environmental or geophysical modification activity as a weapon of war’’.32 He also recommended the prohibition of research aimed at the development of such weapons. In July 1973, his document was deemed a ‘‘sense of the Senate,’’33 an important first step towards the Environmental Modification Convention (ENMOD) that came into force a mere 5 years later.34 Particularly interesting was a proposal, this time emanating from the halls of academia, by Princeton’s Richard Falk. Adopted at the Emergency Conference Against Environmental Warfare in Indochina, held in Stockholm in June 1972, it included a Convention on Ecocide that criminalized many of the activities in which the United States had engaged during the war.35 For instance, the Convention defined ecocide as, inter alia, (b) The use of chemical herbicides to defoliate and deforest natural forests; (c) The use of bombs and artillery in such quantity, density, or size as to impair the quality of the soil or to enhance the prospect of diseases dangerous to human beings, animals, or crops; (d) The use of bulldozing … to destroy large tracts of forest or cropland for military purposes; (e) The use of techniques designed to increase or decrease rainfall or otherwise modify weather as a weapon of war.36

30

See Aldrich 1991, p. 14. For instance, the use of Agent Orange continued to be characterized as an issue of primarily tort, rather than environmental, law. This point was noted in the U.S. Army’s post-Desert Storm/ Shield legal report. See Legal Serv. Agency, U.S. Army, the Desert Storm Assessment Team’s Report to the Judge Advocate General of the Army pt. G, at 1 (1992) [hereinafter Army Assessment]. 32 S. Res. 71, 93d Congo (1973). 33 Id. 34 See Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, 31 U.S.T. 333, 1108 U.N.T.S. 152 [hereinafter ENMOD]. 35 See Proposed International Convention on the Crime of Ecocide, reprinted in Falk 1973, app. I at 93–95 [hereinafter Proposed International Convention on the Crime of Ecocide]. 36 Id. article I, at 93. 31

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The Convention also forbade the forcible removal of human beings or animals from their habitats and the employment of weapons of mass destruction (WMD).37 Those who committed such acts, or were otherwise culpable for their commission, would, at minimum, be removed from any position of public trust.38 Professor Falk also recommended the passage of national implementing legislation, as well as the establishment of a Commission for the Investigation of Ecocide.39 In certain cases, the United Nations would be called upon to take ‘‘appropriate’’ action under the U.N. Charter to prevent and suppress ecocide.40 This implied that ecocide could amount to a breach of peace or act of aggression that might warrant a forceful response under article 42 of the Charter.41 The conference also adopted the Draft Protocol on Environmental Warfare.42 It began by claiming that ‘‘environmental warfare has been condemned by public opinion throughout the world.’’43 Signatories therefore agreed ‘‘as a matter of conscience and of law to refrain from the use of tactics and weapons of war that inflict irreparable harm to the environment or disrupt fundamental ecological relationships.’’44 In addition to outlawing weapons of mass destruction, the document specifically prohibited spreading chemical defoliants, bulldozing, and employing conventional munitions that cause extensive cratering. The Protocol deemed such violations a crime under international law, thus allowing for individual responsibility.45 Though the community of nations never formally adopted either proposal, it was clear that laws to protect the environment—the newest ‘‘victim’’ of war— were on the horizon. A two-track approach was taken. First, negotiations to limit the use of the environment as a weapon led to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Convention (ENMOD). Opened for signature in 1977, this convention came into force for the United States in January 1980. By the terms of ENMOD, states agree 37

See id. article 2, at 93. See id. article 4, at 93. 39 See id. article 6, at 93–94. 40 See id. article 9, at 94. 41 ‘‘The Security Council shall determine the existence of any threat to the peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’’ U.N. Charter article 39. ‘‘The Security Council may decide what measures not involving the use of force are to be employed to give effect to its decisions…’’ Id. article 41. ‘‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proven to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’’ Id. article 42. 42 Draft Protocol on Environmental Warfare, reprinted in Falk 1973, app. 11 at 95–96 [hereinafter Draft Protocol on Environmental Warfare]. 43 Id. at 95. 44 Id. 45 See id. For Professor Falk’s views on ecocide and environmental warfare (as well as reprints of both proposed documents). See Falk 1976; see also Falk 1973. 38

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not to ‘‘engage in military or any other hostile use of environmental modification techniques having wide-spread, long-lasting or severe effects as the means of destruction, damage or injury’’ to other parties.46 Reminiscent of the treaty called for by Senator Pell in 1972, ENMOD was the first environment-specific law of armed conflict. However, it does not necessarily protect the environment proper. Instead, ENMOD proscribes environment-modifying processes as a method of warfare only if significant destruction, damage, or injury would result. Whether that damage is to the environment is irrelevant, though in most cases it would be. Contemporaneously, the second track was taken. The Vietnam experience had highlighted the need to account in the law of war for the new methods, means, and characteristics of armed conflict. Existing international conventions, notably the Hague and Geneva Conventions, had been designed to apply to a genre of warfare very different from that prevalent in Vietnam. In response, the international community gathered between 1974 and 1977 under the auspices of the ICRC to bring the law of war up to date. This Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts met on four occasions to draft Protocols Additional I and II to the Geneva Conventions.47 Protocol I, governing international armed conflict, is central to the environmental law of war, for it contains the only specific prohibitions on damaging (as opposed to using) the environment. Article 35(3) provides that ‘‘[i]t is prohibited to employ methods or mans of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the environment.’’48 The protocol devotes article 55 to the subject: 1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 2. Attacks against the natural environment by way of reprisals are prohibited.49 ENMOD and Protocol I reveal a directional trend in the environmental law of war. Prior to the Vietnam experience, attitudes towards the environment were purely anthropocentric. The lack of any mention of the environment in the law of war suggests that it was understood solely in its utilitarian context. Indeed, it would be difficult to assert that the international community viewed the environment as a distinct entity at all. However, by the end of the Vietnam War the concept of an ‘‘environment’’ had been grasped, albeit primarily anthropocentrically. This perspective is evident in ENMOD’s prohibition on the use of (but not

46 47 48 49

ENMOD, supra note 34, article I, para 1. Protocol I, supra note 8; Protocol II, supra note 10. Protocol I, supra note 8, article 35, para 3. Id. article 55.

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damage to) the environment and in the requirement of article 55 that the threshold environmental damage prejudice the population’s health or survival. Only in article 35(3) does a prescription appear that is divorced from impact on the human population. By its formula, the question is the degree of damage to the environment, rather than its effect in human terms. As shall be discussed below, the drafters included article 35(3) to appease intrinsic value advocates who urged protection of the environment per se. Thus, while the cognitive perspective was primarily anthropocentric in the immediate post-Vietnam period, it was an anthropocentrism increasingly sensitized to the existence of the environment qua environment. Moreover, the first glimpses of an evolutionary trend in the direction of intrinsic valuation were apparent. It should be noted that the United States, although a participant in the negotiations, has elected not to ratify Protocol I, a decision motivated in part by opposition to its environmental provisions.50 In the 1980s, efforts to strengthen the environmental law of war faded. This was true despite significant environmental damage during the Iran–Iraq War— particularly oil spills caused by the tanker war. Between May 1980 and December 1987, some 447 tankers were attacked in the Persian Gulf.51 Also attacked were oil facilities, both ashore and offshore. These operations caused substantial damage. For example, raids against Iran’s Nowruz oil drilling facility in 1983 led to the release of two million barrels of oil into the Persian Gulf. Iraq’s refusal to agree to a temporary truce that would allow the wells to be capped compounded the situation.52 Yet despite the pervasive environmental destruction, the international legal community focused far more attention on neutrality issues. Perhaps this was because the leading nations of the world were nonbelligerents during the Iran–Iraq War. By framing tanker destruction in neutrality terms, neutrals could concentrate on maintaining a free flow of oil, an emphasis that had the practical effect of indirectly fostering broader environmental interests. The prevailing paradigm of the Iran–Iraq War would shift dramatically with the Iraqi invasion of Kuwait in 1990.

8.2.3 The Gulf War The Gulf War brought warfare’s environmental destructiveness to the forefront of international attention. Even before the air campaign commenced on January 17, 1991, there were clear indications that, environmentally speaking, this conflict 50

For articles bearing on the debate over ratification, see Aldrich 1986, 1991; Bagley 1989; Gasser 1987; Matheson 1987; Roberts 1985; Schmidt 1984; Sofaer 1988. 51 In 1984 alone, over two million tons of oil were spilled into the Gulf. See Antoine 1992, at 517, 530. Mr. Antoine asserts that the damage caused during the tanker war rose to the level of ‘‘widespread, long-term and severe,’’ though neither Iran nor Iraq was party to Protocol I. See id. 52 See 29 Kessing’s Contemp. Archives 32, 594–595 (1983); see also Okorodudu-Fubara 1991, 129–131; Walker 1996, manuscript at 2–3.

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would represent a new model. As early as September 1990, Saddam Hussein threatened to destroy oil fields if Coalition forces attempted to expel him from Kuwait.53 Other senior Iraqi leaders made similar pronouncements. Two days before Christmas, for example, the Iraqi Defense Minister, Said Tuma Abbas, responded to Secretary of Defense Cheney’s statement that the ‘‘clock is ticking’’ by boasting that ‘‘Cheney will see how land burns under the feet of his troops and stooges.’’54 That very month the Iraqis detonated six Kuwaiti oil wells to practice for later operations.55 Those beyond Iraqi borders viewed these bellicose statements as more than mere puffery. Among the most vocal in singling out the environmental threat was King Hussein of Jordan. Speaking in November at the Second World Climate Conference in Geneva, he pointed to the possibility of widespread environmental destruction in an attempt to prevent war.56 The Secretary General of Jordan’s Higher Council for Science and Technology, Dr. Abdullah Toukan, echoed the theme at a scientific symposium held in London in January. He warned that the destruction of the Gulfs oil installations could lead to the spillage of up to two million barrels of oil per day. At the same meeting, John Cox, a chemical engineer experienced in the field, suggested that igniting the oil installations could generate smoke equal to that produced by a nuclear explosion, thereby blotting out sunlight and causing a drop in temperatures by as much as 68.57 Oxford’s Adam Roberts has noted astutely that the environmental issue soon took on political overtones. Those concerned with the environmental impact of hostilities generally opposed the war, whereas supporters of Iraqi expulsion by force of arms devoted little attention to environmental matters. For Professor Roberts, this ‘‘polarization’’ had an important consequence: ‘‘There was little if any public discussion of the means which might be used, if there was a war, to dissuade Iraq from engaging in environmentally destructive acts; and little if any 53

On September 23, 1990, the Iraqis released a statement following the joint meeting of the Iraqi Revolution Command Council and the regional command of the Arab Socialist Baath Party, chaired by Saddam Hussein. It proclaimed: The oil, its areas, and Israel will be transformed into something different from what they are now. Thus will be the deluge… The oil areas in Saudi Arabia and in other parts of the states of the region and all the oil installations will be rendered incapable of responding to the needs of those who came to us as occupiers in order to usurp our sovereignty, dignity and wealth.

Partial Text of Statement by Iraq’s Revolution Command Council, Reuters, Sept. 23, 1990, available in LEXIS, News Library, Allnws File; see also Boustany 1990, at A1. 54 Young 1990. 55 Arkin 1996 (manuscript at 6, on file with The Yale Journal of International Law). 56 King Hussein warned of an ‘‘environmental catastrophe.’’ Gulf War Threatens Environment, Jordan King Warns 1990, at A2. 57 Scientists Warn of Environmental Disaster from a Gulf War 1991; see also Experts Warn of Global Fallout from Warfare: Environment; Scientists Say that Smoke from Blazing Kuwait Oil Fields Could Affect the Climate 1991, at A8.

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reference to the laws of war as one possible basis for seeking limitations of this kind.’’58 As one possible remedy, he suggested an unequivocal pre-Desert Storm pronouncement by the United Nations that the laws of war were applicable to environmental damage.59 At that late date, it is doubtful that putting Iraqi leaders on notice would have yielded significant deterrent returns. After all, the Iraqis already had violated international law with impunity on multiple occasions. For example, the seizure of foreign civilians and the use of them as human shields were breaches beyond even theoretical doubt. Their subsequent release can be attributed more to ‘‘rational’’ decision-making than to any last-minute epiphany that the acts were unlawful. The same can be said with regard to chemical weapons. Was it law or the thinly veiled threat of retaliation with weapons of mass destruction that deterred Saddam Hussein? To complicate matters, the law in this area was (and still is) unsettled—a point Iraq probably grasped better than most, given its experiences during the war with Iran. An eleventh-hours proclamation on the environmental law of war by the United Nations, which had proven impotent during the Cold War and was now being informally led by a Protocol I nonsignatory, would hardly have proven a panacea. Furthermore, the last international war crimes trials had been held over 40 years earlier in the aftermath of the Second World War. Therefore, not only was the law uncertain (a point discussed more fully below), but there was also evidence of the international community’s unwillingness to impose state or individual responsibility following armed conflict. That said, Professor Roberts’s suggestion is well taken. Emphasizing the law of war would have hurt nothing, was the right thing to do, and—considering the minimal military value of his actions—might have given Saddam Hussein pause. It certainly would have strengthened the basis for condemnation by the international community after the hostilities. Just prior to the commencement of the air campaign, President Bush did specifically address destruction of oil fields and installations. In the now-famous letter from President Bush to Saddam Hussein, which Iraqi Foreign Minister Tariq Aziz refused to accept from Secretary of State James Baker in Geneva on January 9, the 58

Roberts 1996, manuscript at 31. In his words, ‘‘[n]ew environmental threats and public environmental concerns strengthened the case for having a clear statement about how environmental destruction ran counter to older as well as newer agreements on the laws of war.’’ Id. at 33. Along these lines, Professor Roberts made a very good point:

59

The failure to prevent damage to the environment in the 1991 Gulf War was in marked contrast to a degree of success in preventing the conflict from getting out of hand in some other respects: many hostages, seized in the early weeks of the Iraqi occupation of Kuwait, were released before war broke out; Iraq was kept isolated; the war was kept within geographical limits and was brought to a swift conclusion; and gas, bacteriological and nuclear weapons were not used. Why was there so conspicuous a failure over matters relating to the environment? Id. at 4.

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President warned that ‘‘[y]ou and your country will pay a terrible price if you order unconscionable acts of this sort.’’60 The ICRC also endeavored to focus attention on the potential belligerents’ international legal obligations. It issued its most comprehensive reminder in the form of a note verbale (with attached memorandum of law) on December 14,61 not long after the Security Council passed Resolution 678.62 The resolution authorized the use of ‘‘all necessary means’’ to implement Resolution 660 (the demand for Iraqi withdrawal)63 and to restore peace and security.64 Each of the 164 parties to the 1949 Geneva Conventions received the note verbale. In it, the ICRC reiterated numerous customary and conventional laws of armed conflict. The memorandum of law specifically cited article 55 of Protocol I, and invited states that were not parties to the Protocol (for example, Iraq, France, the United Kingdom, and the United States) to respect that article. It also urged compliance with article 56, a provision that extends protection to works and installations containing dangerous forces, such as dams and nuclear generating stations.65 This protection, as shall be seen, has important environmental implications. When the air campaign was launched in January, the ICRC issued yet another appeal to respect the law of war.66 On February 1, with oil now pouring into the Persian Gulf, the ICRC issued its strongest pronouncement. Warning that the law of war ‘‘might be swept aside by the political, military or propaganda demands of the moment,’’ it emphasized that ‘‘[t]he right to choose methods or means of warfare is not unlimited. Weapons having indiscriminate effects and those likely to cause disproportionate suffering and damage to the environment are prohibited.’’67 The ICRC’s warnings and pleas had little effect. Two days after the air war commenced, the Iraqis began pumping oil into the Persian Gulf from Sea Island Terminal, an offshore oil loading dock. The flow was stemmed only after Coalition air forces bombed the terminal.68 Not to be deterred, the Iraqis exacerbated the

60

Text of Bush Letter to Saddam Hussein, UPI, Jan. 12, 1991, available in LEXIS, News Library, UPI File. Additionally, destruction of the Kuwaiti oil resources was one of the three ‘‘unconscionable acts’’ for which the Iraqi leadership would be held personally responsible—the others being use of chemical/biological weapons and terrorism. See Arkin 1996, manuscript at 2– 3 (citing National Security Directive (NSD) 54, Jan. 15, 1991). NSD 54 remains classified, but is described generally in Simpson 1995, 947. NSD 54 authorized offensive operations against Iraqi forces. Id. 61 ICRC 1990, reprinted in Int’l Rev. Red Cross, Jan.–Feb. 1991 [hereinafter ICRC Note Verbale]. 62 S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg., U.N. Doc. S/RES/678 (1990). On this resolution, see Weston 1991. 63 S.C. Res. 660, U.N. SCOR, 45th Sess., 2932d mtg., U.N. Doc. S/RES/660 (1990). 64 See S.C. Res. 678, supra note 62, para 2. 65 See ICRC Note Verbale, supra note 61, at 22–26. 66 ICRC, Appeal (Jan. 17, 1991), reprinted in Int’l Rev. Red Cross, Jan.–Feb. 1991, at 26. 67 ICRC, Appeal (Feb. 1, 1991), reprinted in Int’l Rev. Red Cross, Jan.–Feb. 1991, at 27. 68 See Ford 1991, at 1.

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pollution by dumping oil into the Gulf from five tankers moored at Mina alAhmadi. The Defense Department estimates that by the end of the conflict, the Iraqis had intentionally spilled between seven and nine million barrels of oil.69 It eventually covered approximately 600 square miles of water and spread along 300 miles of shoreline.70 To place the Iraqi actions in context, the spill was the largest, intentional or accidental, in history. Not all of the oil that found its way into the Persian Gulf derived from Iraqi actions. In fact, the first oil spill of the war may have come on the morning of the seventeenth when U.S. Navy aircraft bombed an Iraqi oil platform at Mina al-Bakr. A week later, Navy planes hit the Amuriyah, an Iraqi tanker that was refueling an air-cushioned landing craft. French aircraft struck a tanker of their own that same day. Other air attacks may also have contributed to the spills.71 These operations are, however, easily distinguishable from the Iraqi actions. Not only were Coalition-caused releases dwarfed by those of the Iraqis, but there is no evidence to suggest purposeful environmental damage by Coalition forces. From a legal perspective, these are critical facts, for there is a clear difference in the law between incidental (collateral, in law of war terminology) and intentional damage. Soon after Desert Storm began, the Iraqis started destroying oil wells to complement their maritime misconduct. For instance, on January 21, they detonated sixty wells in the vicinity of Al Wafra in Kuwait. They also set fire to the Mina ash Shuaybah and Mina Abd Allah oil installations on the coast.72 Nevertheless, it was not until just prior to the start of the ground war on February 23–24 that systematic destruction began in earnest, with the Al Burgan oil fields suffering the heaviest toll. By the end of hostilities, the Iraqis had damaged or destroyed 590 oil well heads. Of these, 508 were set afire, and 82 were damaged in a manner that caused oil to flow from them.73 The blazes reached their destructive peak during May and June, when 4.5 million barrels of oil per day were lost to the fires. Several comparisons illustrate the gravity of this situation. The oil fires generated 86

69

See U.S. Dep’t of Defense, Conduct of the Persian Gulf War: Final Report to Congress, at O26 (1992) [hereinafter DOD Report]. A Greenpeace study cites similar figures, but notes that smaller quantities of oil continued to leak into the Gulf until May or early June of 1991. See Arkin et al. 1991, pp. 63–64. The size of the spill also is discussed in Kuwait Env’t Protection Council 1991, pp. 29–33. 70 See Sharp 1992, p. 41. 71 See Arkin 1996, manuscript at 7–8. Mr. Arkin has noted: ‘‘What the public heard during the war was that around 19 January, Iraq opened valves at the Sea Island terminal, pumping oil directly into the Gulf.’’ Id. at 8. In fact, the Coalition contribution to the spill was reported. For instance, on February 21, 1991, the Associated Press reported that Coalition bombing missions may have been responsible for 30% of the oil spilled. See Marris 1991, at 2. 72 See Arkin 1996, manuscript at 6–7. 73 See DOD Report, supra note 69, at O-26. Estimates of the number of wells damaged or destroyed by the Iraqis differ. Walter Sharp reports the figure as 732, with 650 catching fire. See Sharp 1992, at 40–41. The Kuwaiti government reported that, after February 28, 1991, 613 wells were set on fire, 76 were gushing, and 99 were damaged. See Kuwait Env’t Protection Council 1991, at 1 and Fig. 2.

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billion watts of heat, roughly equal to that of 500 forest fires. Daily soot release into the atmosphere, which drifted as far away as the Himalayas, was the equivalent of 10% of global biomass burning, while sulfur dioxide output approximated 57% of the emissions from electrical utilities. Carbon dioxide production was at the level of 2% of the fossil fuel and biomass burning that occurs worldwide on a daily basis.74 The international community mounted an aggressive campaign to contain the spills and put out the fires. Many U.S. government agencies, with the U.S. Coast Guard at the forefront, took part in the valiant recovery operation. Foreign and international organizations that were active in the effort included the Saudi Meteorology and Environmental Protection Administration and the International Maritime Organization. Ultimately, two million barrels of oil were recovered from the Gulf.75 The battle against the burning oil wells also went well. Nearly thirty firefighting teams from ten countries attacked the blazes, extinguishing them much more quickly than had been expected.76 Despite predictions of doom such as those offered at the scientific symposium in London, the environmental damage was not catastrophic. Warnings of drastic drops in temperature, and the effect this might have on wind currents, proved very much overblown. Similarly, early fears of severe human health problems and wholesale destruction of animal habitats were not borne out.77 Nevertheless, the pooling oil, oil mist, and settling soot did damage the terrestrial environment, particularly the fragile desert ecosystem. In many areas, the annual seed flora failed to set, and perennial vegetation, critically important because its roots are a food source for many animals, incurred damage or died. Additionally, oil harmed intertidal habitats such as mangroves, beaches, and mud flats. Though no major threat to individual human health surfaced, the increase in inhalable particulants that the fires caused was significant when considered in terms of exposure of a large population. This exposure could potentially increase the prevalence and severity of disease, both chronic and acute:78 Of course, the overall assessment may change as unexplained health problems begin to develop among those who were present during the conflict. Why the Iraqis committed the misdeeds remains unanswered. As will be discussed later, the degree of military advantage obtained from an act during war is a

74

See EarIe 1992, at 122. See Roberts 1992, at 538, 549. 76 See Moore 1992, p. 80. 77 The United Nations Environment Programme (UNEP) reported in May 1992 that the oil well fires did not affect the global climate and that the pollution they caused was not severe enough to result in major human health problems. See State of the Environment: Updated Scientific Report on the Environmental Effects of the Conflict Between Iraq and Kuwait, Governing Council of the U.N. Environment Programme, 17th Sess., at 12–13, U.N. Doc. UNEP/GC.17/Inf.9 (1993). 78 On the impact of the spills generally, see Report on the UN Inter-Agency Plan of Action for the ROPME Region, U.N. Environment Programme, Oct. 12, 1991 [hereinafter UNEP Report], reprinted in Weller 1991, 339. 75

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critical data point in assessing its lawfulness. The Department of Defense (DOD) has concluded that the Iraqi actions were of little military utility. In arriving at this conclusion, Pentagon analysts explored possible military benefits of the oil spills. One was to foil Coalition amphibious operations. A secondary purpose may have been to foul desalinization plants in Saudi Arabia either to disrupt military activities ashore or to cause unrest among the Saudi population by depriving it of fresh water.79 The fires arguably could have been intended to obscure Iraqi forces, shielding them from air and ground attack.80 The DOD concluded, however, that Iraq’s actions were probably purely punitive in nature—‘‘environmental terrorism,’’ to use President Bush’s characterization.81 Addressing the issue in its official Gulf War Report, the DOD points out that the oil spills had negligible effect on Coalition naval operations. If the goal was to frustrate a Coalition landing force, then the operation was very poorly conceived. The oil well fires present even more compelling circumstantial evidence of malevolent intent. If the purpose was to create obscurants, why did the Iraqis not just open the valves of the wells, allow the oil to pool, and then set it on fire? Instead, the Iraqis destroyed the wells in a manner that made it difficult to extinguish the resulting fires; this suggests a broader, longer-term purpose than merely to complicate immediate Coalition intelligence gathering, maneuvers, and attacks.82 A counterargument is that since the wells were previously wired with explosives, blowing them up may have been the most expedient method of destruction in the face of the Coalition onslaught. Interestingly, the DOD Report queries why the Iraqis did not set ablaze their own Ar-Rumaylah oil fields, which lay just across the border, if the goal was to obscure their troops from Coalition attack. This, the report contends, further demonstrates Iraq’s punitive motivation.83 From the perspective of rational decision-making, the DOD Report falters here. Not knowing the course that the war and post-war settlement would take, it would have made very little sense for Iraq to destroy its own primary resource merely for short-term tactical and operational gain. Doing so would have been very different from

79

See DOD Report, supra note 69, at O-27. See id. 81 Address Before a Joint Session of the Congress on the State of the Union, 1 Pub. Papers 74, 79 (1991). Some have suggested that a possible motive was ‘‘ecological terrorism in retaliation for the bombing. See, e.g., McFadden 1991, at 4. A more remote possibility is that the motive was economic: Iraq hoped to devastate a competitor, drive up the price of oil, or create an incentive for the removal of sanctions on its own oil exports. 82 See DOD Report, supra note 69, at O-27. 83 See id. Iraq also damaged all 26 gathering centers used to separate oil, gas, and water. This process is integral to oil production. Additionally, the Iraqis destroyed the wells’ technical specifications. See Sharp 1992, at 45. If the purpose was military, what would have justified such acts? One possibility is that the Iraqis wanted to prevent the use of the oil wells by the Coalition forces and Kuwait. However, the DOD Report has the better argument. 80

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destroying resources in an occupied territory from which it was about to be ejected. The respective cost-benefit calculations hardly yield comparable results. Greenpeace has cited various sources to suggest that the Iraqi actions may have had military ends. For example, a Navy spokesman on the U.S.S. Midway reportedly admitted that the smoke from oil fires precluded target acquisition in some cases.84 An F-15 pilot interviewed by the Associated Press reported the same effect.85 On one occasion the Iraqis supposedly even used the smoke from a burning oil field to mask an attack.86 It is not difficult to imagine the problems that Iraq might have hoped the fires would create for the Coalition. It could even be argued that the fires were intended to take advantage of ‘‘weaknesses’’ in high-tech Coalition weapons. Blocking ambient light, for example, diminishes the effectiveness of night vision goggles. Brightness also blinds them.87 Smoke has the former effect, fire the latter. Similarly, smoke can foil guided munitions. Consider the difficulty, for instance, of using an electro-optical guided weapon on a smokecovered target. Ultimately, there is little question that on various occasions Iraqi actions did affect Coalition military operations. There is also little question that they had minimal impact on the overall campaign. Given the difficulty of determining the intent of a dictator who remains in control of a closed society, probably the most objective interpretation of the oil spills and fires is that they may have been intended to achieve military advantages. Despite this possibility, the damage inflicted so outweighed possible gains that the acts were wrongful under international law.88 As a final note, it is important to remember that although the oil spills and fires stole the headlines, the war caused a great deal of additional environmental damage. Mines presented a particular problem. On many occasions, the Iraqis indiscriminately laid mine fields without adequately marking them or accurately recording their locations. This made large areas of land impassable and posed a significant danger to humans and animals alike. Massive mine-clearing efforts had to be mounted to make the land usable again. In areas controlled by Coalition forces after the war, such as the U.N. security zone in the north and Kuwait in the south, mine operations became an integral part of the international relief efforts. To a lesser extent, the same is true of unexploded ordnance (UXO), i.e., the remnants of munitions that failed to explode.89

84

See Arkin et al. 1991, at 141. See id. 86 See id. 87 See Kane 1992, at 42. 88 For discussion of the customary international law concepts of military necessity and proportionality, see infra Sect. 8.3.2. 89 See Horowitz 1992, at 1. The report noted that in the year following the war, more than 1250 civilians were killed or wounded by explosive ordnance and five demolition specialists had died. See id. 85

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The war also had less sensational, though still significant, effects on the environment. For instance, explosions and vehicle movement disrupted the desert ecosystem by loosening its surface, rendering it susceptible to wind and water erosion. Enormous quantities of hazardous materials were also generated, ranging from dishwater and human waste to antifreeze and engine oil. Despite minor problems, U.S. military forces successfully handled these substances in an environmentally responsible manner.90 In retrospect, the military campaign fielded by the United States was the most environmentally conscious in its history. Moreover, it has improved its performance since then.91 Unfortunately, not all of the world’s military forces are fully sensitized to the environmental consequences of their operations. Many U.S. allies, in addition to the Iraqis, caused significant environmental damage merely by their presence.

8.2.4 The Post-Gulf War Period Serious attention to the Gulf War’s environmental impact was apparent as early as March 1991, when Japan proposed that the Governing Council of the United Nations Environment Programme (UNEP) adopt a declaration of principles proscribing the environmentally destructive techniques witnessed during the war.

90

For instance, in one case, a unit collected hazardous waste in barrels so as not to dump it improperly, but failed to mark the barrels. As a result, the contents had to be tested prior to disposal, an extremely costly and time-consuming process. See Army Assessment, supra note 31, pt. G, para 1, at 2. 91 The Army Assessment noted that [i]n general, there was an environmental awareness in the U.S. Army that caused us to consider the environmental consequences of military actions and kept us in concert with the law… This environmental awareness was carefully balanced against the often conflicting needs of waging war. In SWA [Southwest Asia], this translated to: Army policy is to adhere to United States environmental requirements if possible. As a result, environmental law issues were a SJA [Staff Judge Advocate] concern in theater as well as in the United States. Id. pt. G, at 1–2. There were problems, however, with environmental issues during deployment. The Army Assessment noted that ‘‘[c]ommanders [wanted] to do the right thing, but [had] a low tolerance for the impractical.’’ Id. pt. G, para 3, at 3. Quoting an attorney from the Army’s Operations and Law Division, the Assessment provides a clear indication of the mindset: Our attitude at the time was that, you know, we’ve got a deployment going on. To the extent that we can respect the environment, that’s fine, but it’s not our job… We’ve got other things to do and essentially, I don’t know if you call it what we did, ‘stonewalling,’ but essentially, the environmental issues, as far as we saw, went away for the long term. Id. The Assessment characterized this statement not as ‘‘callousness to environmental concerns,’’ but instead as ‘‘the frustration of trying to deal with environmental laws drafted without regard for military necessity.’’ Id.

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Simultaneously, France recommended a prohibition against targeting ecological areas and ‘‘world heritage monuments.’’92 Both proposals were raised 2 months later during UNEP’s sixteenth Session, at which Canada and Greenpeace announced their sponsorship of conferences on the environmental law of war. Additionally, UNEP’s Governing Council endorsed a prohibition against weapons that could ‘‘cause particularly serious effects on the environment.’’93 In June 1991, Greenpeace, in conjunction with the London School of Economics and the British Center for Defence Studies, convened its conference in London. For the conference, Professor Glen Plant of the London School of Economics developed a straw man outline of what the elements of a Fifth Geneva Convention on the Environment might look like.94 Its most significant provision dealt with methods and means of warfare, setting forth four options for a threshold at which environmentally destructive methods and means should be prohibited: Option (a): prohibiting the employment of methods or means of warfare which are intended, or may be expected, to cause any (except de minimis) damage to the environment; Option (b): prohibiting it at least where the damage is widespread, long-lasting or severe; Option (c): prohibiting it as under alternative (b), but adding a fourth alternative criterion, ‘‘significant’’ (or ‘‘appreciable’’) and irreversible; Option (d): choosing some midway position between alternative (b) and the existing excessively high threshold as it appears in Article 35(3) of Protocol I.95

Despite generating a great deal of attention and Greenpeace support,96 Professor Plant’s proposal has not led to a serious international effort to produce an agreement along the lines suggested.97 In July 1991, the Canadian Ministry of External Affairs convened its own conference. The prevailing view of those who gathered in Ottawa was that the existing law adequately addressed the environmental effects of war. However, they recognized the need to consider the evolutionary nature of environmental concerns when applying existing prescriptions. In other words, the ‘‘value’’ of the environment would shift over time, an important factor in performing the balancing tests that dominate the law of war. The conference also took the position that peacetime norms generally remain applicable during hostilities.98 Of particular interest was the position of the U.S. participants. According to one account of the proceedings, they

92 93 94 95 96 97 98

See Terry 1992, pp. 61, 65. G.A. Res. 16/11, U.N. GAOR, 16th Sess., Supp. No. 25, at 48, U.N. Doc. A/46/25 (1992). Plant 1992a, pp. 43–61. Id. at 46. See The Gulf War: Environment as a Weapon 1991, 220 (remarks of Sebia Hawkins). The proceedings of the conference are published in Plant 1992b, at 65–150. See Gasser 1995, p. 639; see also infra Sect. 8.3.1.1.

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carefully underscored the merits of the existing regime, which is based on the principles of military necessity and proportionality under the law of armed conflict. The U.S. concern regarding more restrictive environmental provisions is that they could be implemented only at the expense of otherwise lawful military operations—such as attacking targets which require fuel–air explosives (FAE) for their destruction.99

This is a revealing statement because almost all treaty law of war, except that which merely codifies customary law, limits otherwise legal activities. That is its purpose: to render illegal those legal activities that become contrary to current normative values. The U.S. participants clearly were taking the stance that the present law suffices, that is, it reflects the global community’s values and serves its aspirations. Arguments of this nature represent a failure to see the forest for the trees. That a regime might restrict useful means does not necessarily lead to the conclusion that it deserves rejection. Instead, the question is whether the new regime represents an overall step forward (however one defines ‘‘forward’’). Furthermore, to argue for rejection of a legal regime because it would limit currently legal techniques is, in a sense, meaningless. The relevant factor is not the weapon used, but its target. Simply put, what are the consequences if a target cannot be struck, or be struck as effectively, as otherwise would be the case? Opposition to additional prescriptions on the grounds that they might limit the ability to employ otherwise lawful techniques is classically anthropocentric. By the Ottawa Conference, the lines of demarcation between two opposing camps were becoming clear. One side, exemplified by Greenpeace, had adopted an intrinsic worth approach and took the stance that more law was needed. The anthropocentrics, on the other hand, hesitated to extend the law further out of concern that the hands of the decision-makers might be tied. In their view, the law should be left alone to evolve within the existing framework. In December 1991, a third major international conference convened in Munich. Co-sponsored by the International Council of Environmental Law (ICEL) and the Commission on Environmental Law of the International Union for the Conservation of Nature and Natural Resources, and financed in part by the Dutch government, it brought together a distinguished group of scholars and practitioners. The conference broke into two working groups: the first to consider how the effectiveness and implementation of existing legal instruments might be improved, the second to reflect on possible directions for further development of the legal regime governing the environmental law of war.100 They produced a series of innovative recommendations that are particularly useful in focusing attention on alternatives to the current state of affairs. As to the present law, the conference recommended that Protocol I, and other relevant legal instruments, be universally accepted. It stressed the importance of customary international law norms (e.g., military necessity) to environmental

99 100

Terry 1992, at 65. See International Council of Envtl. Law 1991, at 1.

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protection, as well as the need to disseminate effectively the law of armed conflict. In an interesting comment, the final report also ‘‘observed that the current recognition that the environment itself is an object of legal protection in times of armed conflict implies that traditional perceptions of proportionality and military necessity have become obsolete.’’101 This assertion is a bit inartfully stated, for it would have been more accurate to note that the traditional perceptions are evolving. Nevertheless, the statement demonstrates movement along the continuum between the anthropocentric and intrinsic value cognitive perspectives because it is based on the proposition that the environment per se should be protected. However, the recommendation does not go so far as to suggest that the environment should be safeguarded absolutely without regard to human-related considerations. With respect to the further development of the law, a number of innovative recommendations were proffered. The conference report proposed that any new law be based on protection of the environment per se.102 Again, while this is not necessarily an intrinsic value perspective, it does lean in that direction. Although it did not recommend a new convention, the report did suggest the compilation of two lists. The first would consist of activities during hostilities that could harm the environment, some of which would be absolutely forbidden, with others allowed only conditionally. Reflecting the desire to protect the environment per se, the law would prohibit: ‘‘(i) intentional attacks on the environment; (ii) the manipulation of natural processes causing environmental damage; and (iii) significant collateral damage to the environment.’’103 Violations would constitute grave breaches under international law, thereby imbuing all states with the jurisdictional competence to seize and try alleged offenders. The second list would consist of a registry of protected areas. Though criteria for inclusion would have to be developed, inventories such as the U.N. List of National Parks and Equivalent Reserves, the Ramsar Wetlands of International Importance, the UNESCO Biosphere Reserves, and the Council of Europe’s Biogenic Reserves could be adopted immediately. As to areas not on one of these preexisting lists, studies would have to be conducted to determine their vulnerability to military activities. Ultimately, areas selected for protection would be noted on maps and marked with distinctive symbols.104 The report also urged states to rethink and revise targeting practices in light of technological advances. As an example, it pointed to the sinking of oil tankers. Noting the myriad of methods for preventing the delivery of oil to an adversary, the group argued that actual destruction of vessels should be avoided. Specifically proscribed as targets were sites that contained dangerous forces or in which ultrahazardous activities were carried out.105 This restriction harkens back to

101 102 103 104 105

Id. para 2. See id. para 10. Id. para 13(a). See id. para 13(b). See id. para 16.

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article 56 of Protocol I, which limits how and when works containing ‘‘dangerous forces’’ can be attacked.106 However, whereas article 56’s interpretation usually is limited to dams, dikes, and nuclear electrical generating stations,107 the Munich proposal would extend protection beyond these categories. For instance, oil reserves were cited as protected targets, an illustration clearly selected with the Gulf War experience in mind. The group also addressed practices from that war when it recommended prohibiting the targeting of ‘‘potentially dangerous’’ sites, i.e., those essential either to human health or to the environment. Examples are water purification facilities and sewage treatment plants.108 To enforce the prohibitions, the conference recommended the imposition of state responsibility for either actual or potential damage. Potential damage would be measured by the likelihood of occurrence and the magnitude of harm.109 Characterizing potential damage as actionable represents a novel approach to the issue of state responsibility, because under international law states are seldom responsible for speculative future damage. As the report noted, the concept of responsibility would have to be refined by states, as well as by various national and international governmental and nongovernmental organizations, ‘‘in order to make it fully operational.’’110 Certainly, refinement would include clarifying what is meant by potential damage; it would also require crafting remedies. The group recommended a scheme whereby damaged or destroyed aspects of the environment would be replaced or restored to a pre-war level. When restoration was not possible, ‘‘compensation in kind would be required.’’111 Finally, the Munich Conference took on the jus ad bellum issue of when environmental damage amounts to a threat to, or breach of, peace—a characterization that permits response under the U.N. Charter.112 In particular, it included threatened or actual damage to ‘‘the commons’’ in the category of threat/breach.113 The term extends to areas such as the high seas, which are res communes. Beyond singling out the matter as an issue of importance, and blandly stating the obvious proposition that in the event of a threat or breach ‘‘appropriate measures’’ should be taken, the conference accomplished little else regarding the jus ad bellum. Nevertheless, the Munich Conference was significant in that it generated a consensus product consisting of substantive recommendations. Though the international community is not likely to adopt these without modification any time soon, the conference’s recommendations provide a useful point of departure in discussions of how new law might be shaped.

106 107 108 109 110 111 112 113

Protocol I, supra note 8, article 56, para 1. See infra Sect. 8.3.3.3. See International Council of Envtl. Law 1991, para 16. See id. Id. Id. para 18. See U.N. Charter article 39. See International Council of Envtl. Law 1991, para 17.

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A fourth conference of significance, although dedicated to environmental law issues extending well beyond armed conflict, was the June 1992 United Nations Conference on the Environment and Development (UNCED) in Rio de Janeiro. It issued the Rio Declaration, principle 24 of which specifically addressed environmental concerns in warfare: ‘‘Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.’’114 The compromise character of the declaration is apparent. It responds to claims of the law’s adequacy when it urges respect, but displays a revisionist flavor by encouraging cooperation in the law’s continued development. As the various conferences were being held, the United Nations proper was addressing the matter. The effort began in earnest in July 1991 when the Jordanian representative forwarded a note verbale to the Secretary General faulting the ENMOD Convention for its ineffectiveness in preventing Gulf War environmental damage. Claiming that the Convention was so vague and broad as to be unenforceable, Jordan also criticized the lack of any dispute resolution mechanism in the ENMOD regime.115 To remedy these shortcomings, Jordan urged the creation of a committee to examine the environmental law of war and make recommendations for its improvement. In doing so, Jordan held out the drafting of a new treaty as one remedial option.116 The General Assembly referred the matter to the Sixth (Legal) Committee, which placed the item on its 1991 agenda under the title ‘‘Exploitation of the Environment as a Weapon in Time of War.’’ Jordan, emphasizing that the issue was broader than use of the environment as a weapon, argued for expanding consideration to encompass environmental damage generally.117 The title was changed accordingly to ‘‘Protection of the Environment in Times of Armed Conflict.’’118 During the multiple meetings of the Sixth Committee, there was general consensus that Iraq’s intentional dumping of oil into the Persian Gulf and setting ablaze of oil wells constituted violations of international law.119 As evidence, several states referred to Security Council Resolution 687, which held Iraq liable for ‘‘any direct loss, damage, including environmental damage, and the depletion 114

Rio Declaration on Environment and Development, princ. 24, U.N. Doc. A/CONF. 151/Rev. 1 (1992) [hereinafter Rio Declaration], reprinted in 31 I.L.M. B74. 115 See Note Verbale Dated 5 July 1991 from the Charge D’affaires of the Permanent Mission to Jordan to the United Nations Secretary General, U.N. GAOR, 46th Sess., Annex, para 2, U.N. Doc. A/46/141 (1991). 116 See id. para 3. 117 See Summary Record of the 18th Meeting, U.N. GAOR 6th Comm., 46th Sess., 18th mtg., at 3, U.N. Doc. A/C.6/46/SR.18 (1991). 118 See Summary Record of the 19th Meeting, U.N. GAOR 6th Comm., 47th Sess., 19th mtg., at 5, U.N. Doc. A/C.6/47/SR.19 (1992). 119 See id. at 8–9.

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of natural resources’’ caused by the Iraqi invasion.120 In fact, Resolution 687 liability derived not from the environmental law of war, but instead from the ab initio unlawfulness of the Iraqi use of force. Resolution 687 reflected the jus ad bellum, not the jus in bello.121 Unfortunately, there was no consensus on the legal basis for characterizing the environmental destruction as wrongful. The United States, for example, labeled the actions militarily unnecessary and, therefore, a violation of the Fourth Geneva Convention.122 It also cited them as violations of the customary international law rules of proportionality and necessity. Other states referred to Protocol I and ENMOD, while a third group suggested that peacetime environmental law carried forward into periods of hostilities and applied in the case of the Gulf War.123 Further disagreement arose in the Sixth Committee over whether new law was needed. The United States vocally opposed a new convention on the grounds that none of the proposals made to date adequately balanced the desire for environmental protection with the need to ensure against an erosion of self-defense rights under article 51 of the U.N. Charter.124 The opposing view emphasized that the Gulf War had demonstrated convincingly the need for further development of the legal regime. Additional unresolved issues included dispute resolution, the applicability of peacetime norms during armed conflict, damage assessment processes, and the imposition of liability.125 As this debate unfolded, the ICRC was planning its 26th International Conference, at which one topic was to be environmental damage during warfare. When the conference was later canceled, the ICRC decided to convene a meeting of experts in April 1992 to consider the issue.126 The United Nations took advantage of this opportunity by asking the ICRC to study and report back on current activities in the field.127 In its 1992 report to the Secretary General, the ICRC noted that experts generally had concluded that, despite a ‘‘number of gaps in the rules currently applicable,’’ the best approach was not a new body of law.128 Concurring with the experts, the ICRC recommended efforts to convince more states to accede to existing instruments (an obvious reference to Protocol I), enact implementing 120

S.C. Res. 687, U.N. SCOR, 45th Sess., 2981st mtg., para 16, U.N. Doc. S/RES/687 (1991). See infra Sect. 8.3.4. 122 For discussion of the relevant sections of the Geneva Convention IV, see infra Sect. 8.3.3.2. 123 See Summary Record of the 18th Meeting, supra note 117, at 2–12. 124 See id. at 9. 125 See id. at 2–12. On this and the issue of the basis for unlawfulness of the Iraqi actions, see Morris 1993, 777–779. 126 The cancellation was required due to a dispute over the attendance of a Palestinian representative. See Verwey 1995a, at 12. 127 See G.A. Res. 417, U.N. GAOR, 46th Sess., Supp. No. 49, at 319, U.N. Doc. A/46/49 (1991). 128 See Protection of the Environment in Times of Armed Conflict: Report of the Secretary General, U.N. GAOR, 47th Sess., para 40, U.N. Doc. A/47/328 (1992) [hereinafter 1992 Secretary General Report]. 121

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legislation at the domestic level, and observe their international obligations.129 It also set forth what it believed to be the current law in the area: Hague IV,130 the Fourth Geneva Convention,131 Protocol I, ENMOD, the Gas Protocol of 1925,132 the Biological Weapons Convention of 1972,133 the Conventional Weapons Convention,134 and the draft Chemical Weapons Convention.135 The customary international law of war principles of military necessity and proportionality, as well as the general principle that methods and means of warfare are not unlimited, were said to be applicable, and peacetime environmental law was said to remain in force during armed conflict, particularly between belligerents and neutrals.136 Though the ICRC recommended against further codification, it did highlight four topics that it felt required clarification. First, it recommended harmonizing the understanding of terms common to Protocol I and ENMOD. Both use the terms ‘‘widespread,’’ ‘‘long-term,’’ and ‘‘severe,’’ but the terms are subject to varying 129

129. See id. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277 [hereinafter Hague IV]. 131 Geneva Convention lV, supra note 10. 132 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 14 I.L.M. 49 (1975) [hereinafter Gas Protocol]. The Gas Protocol entered into force for the United States in 1975. 133 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 11 I.L.M. 310 [hereinafter Biological Weapons Convention]. 134 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M. 1524 [hereinafter Conventional Weapons Convention]. The United States ratified this convention in March 1995. Interestingly, there has been relatively little attention paid to the Convention’s preamble: ‘‘[I]t is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.’’ Id. pmbl. In a reservation, France noted that the provision only applies to countries that have ratified Protocol I Additional, which contains identical language. Protocol III of the Conventional Weapons Convention governs incendiary weapons. See Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 19 I.L.M. 1534 (1980) [hereinafter Protocol III]. Its restrictions cover attacks on ‘‘forests or other kinds of plant cover… except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives or are themselves military objectives.’’ Id. article 2, para 4. The United States did not ratify Protocol III. See discussion infra Sect. 8.3.3.3. 135 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 I.L.M. 800 [hereinafter Chemical Weapons Convention]. This convention was transmitted to the Senate in November 1993, but at the time this Essay [chapter] was written, had not yet been ratified. See http://www.un.org/Depts/Treaty. 136 See 1992 Secretary General Report, supra note 128, para 56. The experts compared international environmental law with human rights law. As in the latter, certain provisions of the former were to be inapplicable during armed conflict. Nevertheless, the core provisions, analogized to ‘‘hard core’’ provisions in human rights law, remain in effect. See id. The participants recommended that any new treaty dealing with international environmental law specifically address the issue of applicability during armed conflict. See id. 130

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interpretations—a situation that invites confusion in their application. The ICRC also recommended inquiry into the relationship between international environmental law (primarily peacetime law) and the law of armed conflict (labeled ‘‘humanitarian law’’ by the ICRC). Associated with that inquiry was the need to determine the obligations of belligerents toward nonbelligerents with regard to environmental damage occurring in the territory of the latter. Finally, the ICRC called for a study of how the natural environment per se might be better protected.137 The Sixth Committee reviewed this report. Interestingly, the United States and Jordan submitted a joint memorandum of law to the Chairman of the Sixth Committee for use during the Committee’s consideration.138 Though not as comprehensive as the ICRC’s report, the memorandum set forth an identical set of core prescriptions: Hague IV, Geneva Convention IV, and customary law principles such as military necessity, proportionality, and discrimination. Additionally, the memorandum mentioned Protocol I and the ENMOD as binding on parties to those agreements.139 Not long after the Sixth Committee’s proceedings began, it became clear that the disputes over the law’s sufficiency remained: [S]ome States felt that the existing rules were sufficient and that what was needed was ensuring greater compliance with them. However, most of the States represented thought it also necessary to clarify and interpret the scope and content of some of those rules, and even to develop other aspects of the law relating to the protection of the environment in times of armed conflict. These include the need for better protection of the environment as such; the need for stricter application of the principle of proportionality (and, to this end, for a more precise definition of its scope in specific situations), the importance of defining more precisely the threshold of application of the rules; the need for a clear decision regarding the applicability in wartime of provisions of international environmental law; and the advisability of setting up a mechanism to sanction breaches thereof.140

All suggestions for a ‘‘complete overhaul of existing law’’ were rejected.141 137

See id. para 43. Protection of the Environment in Times of Armed Conflict, Letter from the Permanent Missions of the Hashemite Kingdom of Jordon and of the United States of America to the Chairman of the Sixth Committee (Sept. 28, 1992), U.N. GAOR 6th Comm., 47th Sess., Agenda Item 136, U.N. Doc. A/C.6/47/3 (1992). 139 See id. at 2–3. 140 United Nations Decade of International Law: Report of the Secretary-General on the Protection of the Environment in Times of Armed Conflict, U.N. GAOR, 45th Sess., Provisional Agenda Item 144, paras 14–15, U.N. Doc. A/4S/269 (1993) [hereinafter 1993 Secretary General Report]. The Sixth Committee debates produced many suggestions for improving the legal regime. They addressed the need for harmonization of interpretation and clarification of the norms, the possibility of new law in the field, and potential improvements to the implementation and enforcement regimes, such as fact-finding committees or an international criminal court. See Summary Record of the 19th Meeting, supra note 118; Summary Record of the 9th Meeting, U.N. GAOR 6th Comm. 47th Sess., 9th mtg., U.N. Doc. A/C.6/47/SR.9 (1992); Summary Record of the 8th Meeting, U.N. GAOR 6th Comm., 47th Sess., Sth mtg., U.N. Doc. A/C.6/47/SR.S (1992). 141 See 1993 Secretary General Report, supra note 140, para 15. 138

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Based on its review of the initial ICRC report, the Sixth Committee recommended that the ICRC continue its work in the field and again report its conclusions. By resolution, the General Assembly agreed.142 General Assembly Resolution 47/37 also called for states to become party to the relevant international agreements, a clear reference to Protocol I and its ‘‘rejection’’ by most of the key players in the international arena. Moreover, it contained a plea for compliance with the environmental law of armed conflict and urged states to incorporate its provisions into their law of war manuals. The resolution expressed concern about the environmentally destructive Iraqi actions during the Gulf War, and noted ‘‘that existing provisions of international law prohibit such acts.’’143 The General Assembly resolution also stressed the illegality of environmental destruction unjustified by military necessity.144 This condemnation, unanimously adopted by the General Assembly, has been proffered as ‘‘of special interest’’ to those who expressed concern in the Gulf War’s aftermath that ‘‘the international legal structure was not sufficiently developed to deal with problems such as these.’’145 Despite this assertion, at the time there was great difference of opinion regarding which law was applicable and how to remedy the applicable law’s purported shortcomings. The fact that all could agree that the acts violated some international legal norm hardly demonstrates that the relevant law is sufficiently developed. Retasked, the ICRC began a second round of consultations. It first considered whether to draft new law or look for ways to improve compliance with existing legal norms. Upon the advice of the experts it had gathered to consider the issue, the ICRC chose the latter course of action. In particular, it decided to develop guidelines for wartime environmental protection that could be adopted into instructions that individual countries would issue to their armed forces.146 By its third meeting, the ICRC completed a draft, the ICRC Guidelines, which it forwarded to the United Nations.147 The General Assembly, in turn, invited member states to review and comment upon the ICRC Guidelines. It also welcomed the intention of the ICRC to consider member states’ comments about the Guidelines, make appropriate changes, and resubmit them.148 These steps were completed by 1994, at which time the General Assembly, without formally approving the

142

See G.A. Res. 47/37, U.N. GAOR 6th Comm., 47th Sess., Agenda Item 136, U.N. Doc. A/ RES/47/37 (1993). 143 Id. at 2. 144 See id. On the issues of military necessity and wantonness, see infra Sect. 8.3.2.1. 145 McNeill 1993, p. 77. 146 See Gasser 1995, at 640. 147 See 1993 Secretary General Report, supra note 140. 148 See G.A. Res. 48/30, U.N. GAOR, 48th Sess., at 2, U.N. Doc. A/RES/48/30 (1993). The draft resolutions are U.N. GAOR, 47th Sess., U.N. Doc. A/C.6/47/L.2 (1992); U.N. GAOR, 47th Sess., U.N. Doc. A/C.6/47/L.2/Rev. 1 (1992).

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Guidelines, urged all states to consider incorporating them into their law of armed conflict directives.149 Essentially a restatement of the law of war provisions that the ICRC had cited in its report to the Secretary General 2 years earlier, the Guidelines begin with the assertion that ‘‘existing international legal obligations and … State practice’’150 make up their foundation. In fact, however, they rely heavily on the Protocol I environmental articles that many countries, in particular the United States, oppose. Nevertheless, given the growing number of states that are Protocol I parties, it would be fair to cite its prescriptions as the direction in which the environmental law of war is heading.151 As for state practice, the ICRC position is on firm ground. Whether or not Protocol I is binding on nonsignatories, the only country that arguably has violated articles 35(3) and 55 in a major conflict during the last decade is Iraq, and it suffered nearly unanimous condemnation for its conduct. In addition to Protocol I, the Guidelines refer to a number of other familiar sources of law: Hague VIII (submarine mines),152 Hague IV, Geneva IV, the Conventional Weapons Convention, the Convention for the Protection of Cultural Property,153 and ENMOD. They also emphasize the centrality of classic law of war principles such as the rule of proportionality154; note that peacetime environmental law remains applicable during armed conflict to the extent that it is consistent with the law of armed conflict155; and include what has become known as a ‘‘Martens clause.’’156 Considered a general principle of international law, this latter provision provides that ‘‘[i]n cases not covered by rules of international agreements, the environment remains under the protection and authority of principles of international law derived from established custom, from the principles of humanity and

149 See G.A. Res. 49/50, U.N. GAOR, 49th Sess., U.N. Doc. A/RES/49/50 (1995). The Guidelines are reprinted in U.N. GAOR, 49th Sess., Annex, Agenda Item 139, at 49–53, U.N. Doc. A/49/323 (1994) [hereinafter ICRC Guidelines]; Gasser 1995, at 641–643. 150 ICRC Guidelines, supra note 149, para 1. 151 As of November 30, 1996, there were 145 parties to Protocol I. See http://gvalnexl.icrc.org. Among the parties with whom the United States has close military ties are Australia, Canada, Egypt, Germany, Greece, Korea, and the Netherlands. The Russian Federation is also a party. See id. 152 Convention Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332 (1907) [hereinafter Hague VIII]. 153 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter Convention for the Protection of Cultural Property], reprinted in Schindler and Toman 1988. 154 For example: [T]he general principles of international law applicable in armed conflict—such as the principle of distinction and the principle of proportionality—provide protection to the environment. In particular, only military objectives may be attacked and no methods or means of warfare which cause excessive damage shall he employed. ICRC Guidelines, supra note 149, para 4. 155 See id. para 5. 156 The clause is named after the Russian representative who proposed it at the Hague Conference of 1899.

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from the dictates of public conscience.’’157 In other words, when its criteria are met, the clause denies offenders the argument that their conduct is not actionable because it falls outside applicable international agreements. Specific prohibitions in the ICRC guidelines include those against destroying the environment when not justified by military necessity158; attacking forests with incendiary weapons unless the area is being used for cover, concealment, or camouflage, or unless the forests or plant cover are legitimate targets in themselves159; and attacking objects on which the civilian population depends for survival (when carried out to deny civilians those objects).160 Particular types of historic monuments and places of worship are forbidden targets,161 as are installations or works containing dangerous forces.162 In a novel provision, the experts recognized the environmental dangers of mines by prohibiting their indiscriminate laying.163 As might be expected, the ‘‘widespread,’’ ‘‘long-term,’’ and ‘‘severe’’ formula of Protocol I and ENMOD makes another appearance,164 and reprisals against the environment are proscribed.165 These latter provisions are certain to hinder universal adoption, for both are derived from controversial Protocol I articles. Finally, the responsibility to ‘‘prevent and, where necessary, to suppress and to report to competent authorities’’ breaches of the rules is imposed on military 157

ICRC Guidelines, supra note 149, para 7. See id. para 8 (citing Hague IV, supra note 130, article 23(g); Geneva Convention IV, supra note 10, articles 53, 147; Protocol I, supra note 8, articles 35, para 3, 55); see also infra Sect. 8.3.3.3. 159 See ICRC Guidelines, supra note 149, para 9(a) (citing Conventional Weapons Convention, supra note 134; Protocol III, supra note 134). 160 See id. para 9(h) (citing Protocol I, supra note 8, article 54). 161 See id. para 9(d) (citing Convention for the Protection of Cultural Property, supra note 153; Protocol I, supra note 8, article 53). 162 See id. para 9(c) (citing Protocol I, supra note 8, article 56). Note that the United States is opposed to this provision in Protocol I. See infra Sect. 8.3.3.3. 163 The Guidelines state: 158

The indiscriminate laying of landmines is prohibited. The location of all pre-planned minefields must be recorded. Any unrecorded laying of remotely delivered, non-self neutralizing land mines is prohibited. Special rules limit the emplacement and use of naval mines. ICRC Guidelines, supra note 149, para 10 (citing Conventional Weapons Convention, supra note 134, article 3; Protocol I, supra note 8, article 51, paras 4–5; Hague VIII, supra note 152). 164 The ICRC Guidelines provide: ‘‘Care shall be taken in warfare to protect and preserve the natural environment. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment and thereby prejudice the health or survival of the population’’. ICRC Guidelines, supra note 149, para 11. Note that the ICRC has elected to include the anthropocentrically based prescription found in article 55 of Protocol I, rather than the more heavily intrinsic value prohibition of article 35(3). For discussion of this distinction, see infra Sect. 8.3.3.3. 165 See id. para 13 (citing Protocol I, supra note 8, article 55, para 2).

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commanders.166 Using nondiscretionary language, the Guidelines provide that ‘‘[i]n serious cases, offenders shall be brought to justice.’’167 It will be instructive to watch the progress of adoption, if only because of the relationship between the Guidelines and controversial Protocol I prescriptions. In fact, increased awareness of warfare’s environmental implications slowly is beginning to be reflected where it will have its greatest practical effect—in guides for planners, warfighters, and, operational lawyers. The German law of war manual is among the most progressive.168 Not only does this 1992 document provide for basic protections based on such principles as military necessity, unnecessary suffering, and distinction, but it also includes prohibitions that track those found in Protocol I and ENMOD. Specifically, article 401 provides that ‘‘[i]t is particularly prohibited to employ means or methods of warfare which, are intended or of a nature … to cause widespread, long-term and severe damage to the natural environment.’’169 The manual contains a similar provision with regard to naval warfare. What is most noteworthy about the German manual is that it clarifies the ENMOD and Protocol I terminology that is the source of much controversy. In article 403, the manual states that ‘widespread,’ ‘long-term’ and ‘severe’ damage to the natural environment is a major interference with human life or natural resources which considerably exceeds the battlefield damage to be regularly expected in war. Damage to the natural environment by means of warfare and severe manipulation of the environment as a weapon are likewise prohibited.170

The extent to which this attempt to square the terminological circle of these two agreements will prove successful remains to be seen. Another example of a law of war guide that addresses the environment is the San Remo Manual.171 Drafted for the International Institute of Humanitarian Law by a group of distinguished experts between 1988 and 1994 as a ‘‘restatement’’ of the international law of armed conflict at sea, this influential guide takes a different approach than its German counterpart. Whereas the German Manual adopts the phraseology of Protocol I and ENMOD, the San Remo Manual employs the ‘‘due

166

Id. para 20. Id. para 20 (citing Geneva Convention IV, supra note 10, articles 146–147; Protocol I, supra note 8, articles 86–87). 168 Federal Ministry of Defence of the F.R.G., Humanitarian Law in Armed Conflicts: Manual (1992) [hereinafter German Manual]. 169 Id. para 401. 170 Id. para 403. 171 International lnst. of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Louise Doswald-Beck 1995) [hereinafter San Remo]. The group assembled to draft the manual included Professor Salah El-Din Amer, Louise Doswald-Beck, Vice Admiral (ret.) James H. Doyle, Jr., Commander William J. Fenrick, Christopher Greenwood, Professor Horace B. Robertson, Jr., Gert-Jan F. Van Hegelsom, and Dr. Wolff Heintschel von Heinegg. 167

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regard’’ standard of care found in the Law of the Sea Convention.172 Paragraph 44 of the manual provides that ‘‘methods and means of warfare should be employed with due regard for the natural environment taking into account the relevant rules of international law. Damage to or destruction of the natural environment not justified by military necessity and carried out wantonly is prohibited.’’173 Although this provision is less stringent than those found in Protocol I and ENMOD, it may be more appropriate in the naval context because ‘‘due regard’’ is a familiar concept in maritime law and practice. Additionally, Protocol I was never intended to encompass naval warfare.174 None of the primary U.S. law of war manuals highlights environmental concerns to any significant degree. Current Army and Air Force versions are simply too dated to have focused on the issue.175 However, while the Navy’s old manual was also silent on this issue,176 the newly published Navy manual does mention the topic.177 Since it represents the most current expression of U.S. policy on the subject, the manual’s sole environmental provision merits quotation in its entirety: It is not unlawful to cause collateral damage to the natural environment during an attack upon a legitimate military objective. However, the commander has an affirmative obligation to avoid unnecessary damage to the environment to the extent that it is practicable to do so consistent with mission accomplishment. To that end, and as far as military requirements permit, methods or means of warfare should be employed with due regard to the protection and preservation of the natural environment. Destruction of the natural environment not necessitated by mission accomplishment and carried out wantonly is prohibited. Therefore, a commander should consider the environmental damage which will result from an attack on a legitimate military objective as one of the factors during targeting analysis.178 172 See United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/ CONF.62/122, 21 I.L.M. 1261 [hereinafter LOS Convention]. For instance, article 58(3) provides that ‘‘[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State.’’ Id. article 58, para 3. 173 San Remo, supra note 171, para 44. 174 On the applicability of Protocol I to naval warfare, see infra Sect. 8.3.3.3. At the meeting there was significant debate over whether to use a ‘‘due regard’’ or ‘‘respect for’’ standard. According to the Rapporteur, some of the participants wanted to use the latter to maximize protection of the environment. See San Remo, supra note 171, para 44.9. However, the ‘‘due regard’’ standard was eventually agreed upon because it was already in use in the LOS Convention and because it ‘‘more appropriately expressed the balance that must exist between the right of the States involved in naval conflict at sea to use lawful methods and means of warfare on the one hand, and the duty of such States to protect the marine environment on the other.’’ Id. 175 See Department of the Air Force, International Law—The Conduct of Armed Conflict and Air Operations (pamphlet No. 110–131, 1976) [hereinafter AFP 110–131]; Department of the Army, the Law of Land Warfare (Field Manual 27-10, 1956) [hereinafter AFM 27-10]. 176 Department of the Navy 1989. 177 Note that both the Marine Corps and the Coast Guard have agreed to the new manual’s use in a multiservice format. 178 Department of the Navy, Commander’s Handbook on the Law of Naval Operations, para 8.13 (Naval Warfare Publication 1–14 M, 1996) [hereinafter NWP 1–14 M].

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It will be particularly interesting to see how the new U.S. multiservice law of war manual, on which the Army has taken the lead, handles environmental matters. If the most recent edition of the Army’s excellent Operational Law Handbook is any indication, the manual will display a growing awareness of, and commitment to, environmental protection during warfare.179 The handbook devotes an entire chapter to the subject of the environmental law of war, citing to sources that were referenced in the Secretary General’s Report and the Jordanian–U.S. memorandum discussed previously. However, what is noteworthy about the handbook is that in discussing military necessity, it directs judge advocates to ‘‘pay particular attention to (1) the geographical extent (how widespread the damage will be), (2) the longevity, and the (3) severity of the damage upon the target area’s environment.’’180 Significantly, these three factors mirror those found in the Protocol I provisions to which the United States objects. The handbook also notes that while the United States is not a party to the protocol, U.S. forces need to be sensitive to the implications of combined operations with the military forces of states that are parties to the protocol. This is superb advice of very practical warfighting import. Finally, mention should be made of a NATO initiative in the environmental field that has borne little fruit thus far. In January 1994, Norwegian, German, and Canadian representatives recommended that NATO’s Committee on the Challenges of Modern Society conduct a pilot study on environmental protection. Though most delegations received the proposal favorably, two expressed a concern that the study might have negative consequences for military effectiveness. At present, the proposal has been placed on hold pending further assessment of its merits.181 Whether it resurfaces will be an excellent indicator of shifts in attitudes toward the place of environmental concerns in combat. Do these various steps forward portend an emergent military sensitivity to the environmental law of war? That the Office of the Secretary of Defense (OSD) sponsored The Symposium on the Protection of the Environment During Armed Conflict and Operations Other Than War at the Naval War College in September 1995 suggests that the answer is yes. Despite heightened interest in such protection, the prevailing view—that no effort to fashion new law, or to codify existing

179 See International & Operational Law Dep’t, U.S. Army, Operational Law Handbook (1995) [hereinafter Operational Law Handbook]. The Handbook provides:

Protecting the environment has become steadily more important during the past several decades. The international community is increasingly vigilant in its oversight of the environmental consequences of military operations…. Failure to comply with environmental law can jeopardize current and future operations, generate domestic and international criticism, produce costly litigation, and even result in personal liability of both the leader and the individual soldier. Id. at 5-1. 180 Id. at 5-4. 181 This initiative is described in Fleck 1996 (manuscript at 7–8, on file with The Yale Journal of International Law).

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law, is needed—remains firmly entrenched. It was certainly the general consensus of the scholars, warfighters, and policymakers who gathered in Newport.182 That the dominant cognitive perspective remains overwhelmingly anthropocentric is also clear. The comments of the ICRC’s Hans-Peter Gasser may reflect the prevailing attitude. Speaking at the 1991 London Conference in his personal capacity, he noted that the ICRC does not look so much at the environment as such but more at the environment in the context of and around human beings. As you know the Geneva Conventions are geared essentially to the protection and safeguarding of human beings in times of armed conflict … [The environmental provisions of Geneva law] protect the environment for human beings—when both civilians and combatants are affected.183

This perspective could apply equally to the law beyond the Geneva Conventions (and Protocol I) and to international attitudes other than those of the ICRC. Having set the law within its proper historical context, it is appropriate to turn to an analysis of the law and the effect of the various perspectives on it.

8.3 Where Are We? 8.3.1 Peacetime Prescriptions Since the Gulf War, there has been widespread recognition that the role of peacetime environmental prescriptions during armed conflict merits further study.184 Part of the uncertainty in deciding which prescriptions apply derives from the context within which this body of law was intended to operate. As one commentator has perceptively noted, environmental law emerged primarily in response to major accidents such as the Torrey Canyon disaster and Chernobyl.185 It was never intended to govern the intentional infliction of damage to another’s territory; in several cases, the issue has been resolved explicitly through treaty

182 However, it was not the unanimous consensus; some participants called for new law. See id. at 5. 183 AI-Khasaweh 1992, at 111 (statement of Hans-Peter Gasser). 184 The matter was addressed in both the ICRC and Munich Conference reports, whose specific conclusions are nearly interchangeable. The ICRC experts opined that environmental law remained largely applicable during hostilities and that core environmental treaties needed to be analyzed to assess applicability. See 1992 Secretary General Report, supra note 128, para 56. The Munich Conference went slightly further by noting that environmental law remained in force as between belligerents and nonbelligerents, but that the rules concerning its effect vis-à-vis opposing belligerents needed to be clarified. See International Council of Envtl. Law 1991, para 6. The consensus view is that while some peacetime environmental law may certainly remain in effect during hostilities, no ready-made catalogue of applicable law exists, nor are the rules for applicability well defined. 185 See Leibler 1992, pp. 69–70.

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provisions excluding applicability during armed conflict.186 Yet to the extent that international actors are liable for negligent actions (or even nonnegligent actions, in cases of strict liability) that damage the environment, should they not also be held liable when they intentionally set out to realize the forbidden end? From a moral perspective, the response may well be that they should; legally, things look much hazier.187 The uncertainty is of consequence, for the bulk of international environmental law is found in sources outside the law of, armed conflict. Selected elements of the former will be surveyed in the following sections. However, much more important than the issue of what law applies is the issue of when it applies. What are the ‘‘rules’’ for applying peacetime norms during armed conflict? Without understanding these rules, any consideration of specific scenarios that might involve peacetime norms will prove futile because most environmental agreements fail to address the issue directly. Therefore, the inquiry into peacetime prescriptions must begin with the issue of applicability.

8.3.1.1 Applicability In the classic understanding, treaties did not survive the initiation of hostilities. War was a state of affairs that existed beyond the realm of international law and relations. Indeed, it represented the breakdown of those entities. However, the more modern view is that war is a continuation of interstate relations and, thus, subject to legal limits. This was the position that Justice Benjamin Cardozo expressed in the landmark case of Techt v. Hughes.188 According to Justice Cardozo, ‘‘international law today does not preserve treaties or annul them, regardless of the effects produced. It deals with such problems pragmatically, preserving or annulling as the necessities of war exact. It establishes standards, but it does not fetter itself with rules.’’189 Within this contemporary approach, three camps may be discerned.190 The oldest school suggests that whereas certain relations animated by legal content might survive the outbreak of hostilities, treaties do not; a treaty relationship is

186 See, e.g., International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, article 19, 12 U.S.T. 2989, 327 U.N.T.S. 3 (‘‘In case of war or other hostilities [a party may] suspend the operation of the whole or any part of the present convention…’’). 187 In his excellent article, Anthony Leibler notes that ‘‘to the extent that these laws apply to the negligent or careless pollution, it is logical to assume that they must certainly apply to deliberate pollution.’’ Leibler 1992, at 70. While it may in fact be logical, such a conclusion does not hold as a matter of international law. As will be discussed below, the existence of a state of armed conflict has much play on the issue. 188 128 N.E. 185 (N.Y.), cert. denied, 254 U.S. 643 (1920). 189 Id. at 191. 190 For an excellent discussion on which much of this analysis builds, see Delbrück 1982.

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inconsistent with a state of armed conflict.191 Its advocates point to the fact that no peacetime environmental convention specifically provides for applicability during hostilities as further support.192 On the other extreme are those who maintain that treaties do survive, except to the extent that they are by their specific nature inconsistent with hostilities. Examples of inconsistent agreements between opposing belligerents are status of forces agreements, alliance arrangements, and military aid treaties. A third approach takes the middle ground. Labeled the ‘‘theory of differentiation,’’ it is contextual in nature and reflects an effort to balance the stability that international agreements offer with a realization that armed conflict may be at odds with the fulfillment of treaty obligations and rights. Notably, it acknowledges that treaties may concern parties other than belligerents. Thus, in determining whether an agreement survives, it is necessary to ask whether continued vitality is consistent with the larger context in which the agreement will operate. The Vienna Convention on the Law of Treaties does little to resolve the matter. In article 73, it simply states that ‘‘[t]he provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty… from the outbreak of hostilities.’’193 In the absence of a definitive statement of law, and in the face of disagreement over the effect of war on treaties, one must turn to logic and context to select from among the three approaches. To argue sans plus that treaties become inoperative upon the start of hostilities is to suggest that war is really all that matters once it breaks out. However, many treaties are the expression of mutual interests wholly unrelated to the causes or effects of conflict. The first approach would, therefore, forfeit the mutual benefits that treaties might continue to provide to both parties.194 On the other hand, the second approach’s claim of near-universal continued validity is unrealistic. States become involved in armed conflict for many different reasons. Some conflicts are the product of rational decision-making; some are not. Yet all wars are laden with emotion. Even aspects of ante bellum relations unrelated to the conflict are bound to be affected, a reality for which the law should account. The aim should be to 191

For example, one prominent scholar has noted that ‘‘[a]s a rule, bilateral treaties are terminated or suspended by the outbreak of a war unless they were concluded with the war in mind. The effects of multilateral treaties are also suspended between the adversaries unless they were concluded specifically with a view to the state of war.’’ Bothe 1991, p. 59. He goes on to acknowledge, however, that ‘‘modern opinion… favors the non-suspension of certain types of obligations even between belligerents. It would appear that some basic rules relating to the environment might be counted among the latter obligations.’’ Id. 192 See, e.g., Verwey 1995b, manuscript at 11. 193 Vienna Convention on the Law of Treaties, May 23, 1969, article 73, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter Vienna Convention]. The Vienna Convention came into force in 1980, but, as of the date of this Article [chapter], has not been ratified by the United States. Nevertheless, most of its provisions are declaratory of customary international law. 194 For example, mutual safeguarding of straddling stocks of fish pursuant to article 63 of the Law of the Sea Convention benefits both sides by preserving a mutually important natural resource. See LOS Convention, supra note 172, article 63.

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preserve treaty regimes that can survive; to perpetuate artificially those that are destined to splinter will dilute the effect of those that might not. Best fostering this aim and upholding international interests in global order is the third conceptual approach. It suggests certain conclusions about continued vitality that derive from the nature of the treaty at hand and the type of conflict underway. On the one hand, there are those agreements intended for armed conflict, such as the Geneva Conventions. Obviously, all such treaties survive; indeed, they may not even become operative until hostilities occur. Also surviving are treaties that expressly provide for continuance during war.195 At the other end of the spectrum lie those treaties that either become inoperative by their own terms once armed conflict breaks out196 or are so obviously inconsistent with hostilities that they are a priori deemed to terminate when hostilities commence. Military aid agreements are a good example. The issue becomes much more difficult between the two extremes. However, given the goals underlying the theory of differentiation, it is possible to pose a series of questions that can help identify where along the continuum a treaty is likely to fall. Consider the following indicators of survivability. Bear in mind that these indicators apply contextually; it would be foolhardy to assess survivability apart from the actual situation in which the applicability issue arises. (1) Does the treaty regulate private or public interests? Treaties governing purely private interests are more likely to survive, for citizens may continue to reap their benefits even after the outbreak of hostilities without damaging the state’s interests. Since environmental treaty law performs both functions, a case-bycase analysis is required. (2) Is the treaty multilateral or bilateral? Bilateral treaties are much more likely to be suspended or terminated. In contrast, multilateral treaties will generally remain operative between belligerent and nonbelligerent signatories. As between opposing belligerents, if the obligation or right involved has ramifications (collateral damage, if you will) that extend beyond the belligerents, then it is less likely to be suspended or terminated. This often will be the case with treaties that create international regimes for a shared good.197 Given the

195 See, e.g., General Act of the Berlin Conference Respecting the Congo, Feb. 26, 1885, 65 Consol. T.S. 485 (providing for freedom of navigation on Congo and Niger rivers); Convention Relating to the Non-fortification and Neutralization of the Aaland Islands, Oct. 20, 1921, 9 L.N.T.S. 211. 196 See, e.g., International Convention for the Prevention of Pollution of the Sea by Oil, supra note 186 (permitting parties to suspend operation of treaty either in whole or in part in event of war or other hostilities). 197 See, e.g., Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295 (setting forth rules of air for nongovernmental aircraft).

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interconnectedness of the global environment, the survival of environmental obligations and rights is especially likely.198 (3) If a bilateral treaty is at issue, who is party to the treaty? If it is between belligerents, then it will almost surely be suspended or terminated. Conversely, bilateral treaties between a belligerent and nonbelligerent usually will remain in force. There are certain exceptions to this generalization; the most common is the legal principle of ‘‘fundamental changed circumstances’’—rebus sic stantibus. This customary principle, codified in article 62(1) of the Vienna Convention on the Law of Treaties, holds that an unforeseen fundamental change of circumstances may justify termination or withdrawal when the anticipated circumstances constituted an ‘‘essential basis of the consent’’ of the parties at the time of agreement and the effect of enforcing the treaty in the new circumstances would be to ‘‘radically transform’’ the unperformed obligations of one of the parties.199 There can be little debate about whether the outbreak of armed conflict constitutes a fundamental change of circumstances. In the environmental arena, though, a state of peace would probably not have been an essential basis of agreement, unless compliance with the environmental restrictions would hinder effective combat operations. If so, such restrictions would fall into the category of radically transformed unperformed obligations. This analysis is equally applicable to multilateral treaties. Note that an ‘‘aggressor’’ may not invoke fundamentally changed circumstances to, excuse itself from treaty obligations, because the change in question cannot result from the breach of international obligations owed to other treaty parties.200 Thus, if the invoking party is in violation of article 2(4) of the U.N. Charter, it may not rely on article 62 of the Vienna Convention. (4) Are treaty obligations and/or rights executed or executory? The finality of a treaty is a powerful indication that it should remain in effect.201 Only in extraordinary circumstances would it be disturbed, and such circumstances 198

Consider the case of the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution, Apr. 24, 1978, 17 I.L.M. 511. This treaty, to which Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates are parties, provided for the establishment of the Regional Organization for the Protection of the Marine Environment (ROPME), headquartered in Kuwait. ROPME continued to operate during the Gulf War, with the participation of both Kuwait and Iraq, even though its staff elements did leave Kuwait during the Iraqi occupation. Furthermore, the organization was instrumental in the post-hostilities cleanup effort. 199 Vienna Convention, supra note 193, article 62, para 1. It is a contextual standard. Consider the Convention on International Trade in Endangered Species of Wild Fauna and Flora, July 1, 1975, 27 U.S.T. 1087, 12 I.L.M. 1085, an agreement which appears to have little relationship to armed conflict of the case of an extremely poor (failing) state engaged in an armed struggle for survival? If endangered species were one of the state’s few sources of funds, would that state be required to comply with the denunciation provisions set forth in the treaty, or would the conflict represent changed circumstances radically transforming the state’s obligations? 200 See Vienna Convention, supra note 193, article 62, para 2. 201 For instance, in the Treaty of Peace Between the United States and Great Britain, the United States is acknowledged to be a free state. The provision binds all the King’s successors. Treaty of Peace, Sept. 3, 1783, U.S.-Gr. Brit., article 2, 8 Stat. 80.

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would generally involve issues of fraud, coercion, and the like—not the existence of armed conflict.202 Most environmental treaties, in contrast, are executory because they impose continuing obligations. (5) What type of conflict is involved? Current legal perspectives on treaty survival were conceived of as operating in the context of robust warfare, that is, hostilities of relatively significant intensity and extended duration. Furthermore, they responded to a classic aggression/self-defense paradigm. Today, however, the United States and other major powers are most likely to find themselves involved in low-intensity, limited-duration military operations other than war (MOOTW) motivated by nondefensive considerations. MOOTW—peacekeeping, peace enforcement, peacemaking, humanitarian intervention, humanitarian relief, etc.—should not be deemed to have the same effect on treaties as more traditional forms of combat. Warfare in the familiar sense is a breakdown in relations, followed by an aggressive act. In response, the ‘‘victim’’ state acts in self-defense. Normal relations have been supplanted by the desire to harm an opponent. Though the intent may not be malicious (for example, to force an enemy to come to his senses regarding the costs of aggression), harm nevertheless remains the objective. In MOOTW, on the other hand, the goal usually is to avoid having to harm an opponent, assuming one can be identified. There should therefore be a presumption in favor of continued legal relations among all parties. When this presumption proves unreasonable or impractical in specific circumstances, the fallback position should logically be a presumption favoring suspension over termination of the treaty. The avoidance of environmental damage fits well within this relatively benign perspective. To summarize, the approach that best comports with the reality of armed conflict while fostering world order is one in which a presumption of survivability attaches to peacetime environmental treaties, absent either de facto incompatibility with a state of conflict or express treaty provisions providing for termination. That said, the issue is best analyzed on a case-by-case basis. Particularly important is an awareness that urging the continued validity of treaties that, for practical purposes, are inconsistent with the existence of belligerent relations may be counterproductive to maintaining survivable treaty regimes. Finally, in assessing whether war has rendered treaty obligations void, voidable, suspended, or suspendable, it is essential to ask to whom the treaty obligations apply, for a key criterion is whether the treaty is between belligerents or between a belligerent and a nonbelligerent.

8.3.1.2 Substantive Norms Those hoping to find comprehensive peacetime limits on environmental damage either in customary law or in the decisions of international adjudicative bodies will 202

53.

On the grounds for invalidity of treaties, see Vienna Convention, supra note 193, articles 46–

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be disappointed. Instead, the prolific output of various international bodies, particularly the United Nations, has been primarily hortatory and aspirational in nature. As will become clear, it is only with great reluctance that states surrender sovereign prerogatives over the use of, and activities within, their territory. Thus, international instruments that have been agreed upon tend to be either nonbinding or narrowly crafted. The beginning of the modern international environmental effort can be traced to the Stockholm Conference of 1972. Attended by representatives of over 100 countries, the U.N.-sponsored gathering produced two hortatory documents: a Declaration on the Human Environment203 and an Action Plan.204 Principle 21 serves as the Declaration’s capstone. Reiterating the most basic premise of international environmental law, it provides: States have, in accordance with the Charter of the United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.205

The principle thereby recognizes the tension between sovereignty and international environmental law, and attempts to balance the two. The final clause of the principle also suggests extending state responsibility to acts that cause environmental damage in the global commons, such as the high seas.206 Finally, though the Declaration does not address war per se,207 principle 26 emphasizes that ‘‘[m]an and his environment must be spared the effects of nuclear weapons

203 United Nations Conference on the Human Environment, Stockholm Declaration on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14 (1972), revised by U.N. Doc. A/ CONF.48/14/Corr.l (1972), reprinted in 11 I.L.M. 1416 [hereinafter Stockholm Declaration]. The Declaration sets forth 26 guiding principles for crafting international environmental prescriptions. It asserts that there is a ‘‘fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.’’—Id. princ. 1. This right contains the corollary duty to ‘‘protect and preserve the environment for present and future generations.’’ Id. Other principles address such manners as the relationship between underdevelopment and the environment, and liability and compensation. See id. princs. 9, 22. 204 United Nations Conference on the Human Environment, Action Plan for the Human Environment, U.N. Doc. A/CONF.48/14 (1972), reprinted in 11 I.L.M. 1421 (adopting 109 recommendations on such manners as management of global environment and environmental assessment). 205 Stockholm Declaration, supra note 203, princ. 21. 206 The conference sped establishment of the United Nations Environment Programme (UNEP). Created in 1973, UNEP is responsible for coordinating U.N. activities involving the environment. It is also charged with pursuing agreement on international environmental treaties such as the Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, T.I.A.S. No. 11,097, 26 I.L.M. 1529 [hereinafter Ozone Convention]. 207 Stephanie Simonds argues that principle 21 does not apply during warfare. See Simonds 1992, p. 192.

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and all other means of mass destruction.’’208 Thus, at this early point, consideration of the effect of warfare on the environment centered less on the fact of an impact than it did on the quantum of damage that could be caused—a very anthropocentric approach. Although it did not generate new law, the Stockholm Declaration certainly indicated where international attitudes were headed in 1972. The environment was now acknowledged as a separate entity, but legal norms affording it protection continued to employ balancing tests. The next major environmental effort came 10 years later when the World Conservation Union issued the World Charter for Nature, a document promptly adopted by the U.N. General Assembly, albeit with minor modifications.209 Of course, a General Assembly resolution, like the Stockholm Declaration, is only hortatory and aspirational. Nevertheless, it broadly articulates the standards influencing assessments of environmentally destructive conduct.210 With regard to extending peacetime norms to armed conflict, the Charter presents five key principles.211 The most important, principle 5, states that ‘‘[n]ature shall be secured against degradation caused by warfare or other hostile activities.’’212 Building on this aspiration in the section on implementation is principle 20, a provision that could apply equally to times of peace and war: ‘‘Military activity damaging to nature shall be avoided.’’213 Coming on the heels of Protocol I and ENMOD, the World Charter reflected the broadest statement on war and the environment to date by an intergovernmental organization.214

208

Stockholm Declaration, supra note 203, princ. 26. See G.A. Res. 3717, U.N. GAOR, 37th Sess., Supp. No. 51, at 21, U.N. Doc. A/RES/3717; World Charter for Nature, U.N. Doc. A/37/L.4 & Add.l (1982). In the General Assembly vote, 17 nations abstained, while one, the United States, voted against the resolution. The U.S. vote was not based on the provisions concerning warfare. See 1981 U.N.Y.B. 1026. 210 In the General Assembly resolution, those principles of conservation intended to serve as ‘‘the common standard by which all human conduct affecting nature is to be guided and judged’’ are set forth. World Charter for Nature, supra note 209, pmbI. 211 The first four of these principles urge against disruption of the ‘‘essential processes’’ of nature, assert the need to safeguard habitats to prevent extinction, encourage protective regimes for unique areas, and argue for an ecosystem approach to maintenance of environmental wellbeing. Id. princs. 1–4. 212 Id. princ. 5. 213 Id. princ. 20. 214 As might be expected, the Charter was a predominantly anthropocentric product. This is particularly apparent in the seven principles related to ‘‘responsibilities’’ of parties. For instance, the section begins with the statement that ‘‘[i]n the decision-making process it shall be recognized that man’s needs can be met only by ensuring the proper functioning of the natural systems.’’ Id. princ. 6. Similarly, in assessing whether to proceed with activities that pose a significant risk to nature, proponents are required to ‘‘demonstrate that expected benefits outweigh potential damage to nature.’’ Id. princ. 11(b). While not purely anthropocentric (because the risk calculation need not be measured in terms of the contribution nature’s damaged aspect makes to man), the mere fact that balancing occurs suggests an anthropocentric perspective. 209

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A decade after adoption of the World Charter, the United Nations sponsored the ‘‘Earth Summit’’ in Rio de Janeiro to commemorate the twentieth anniversary of the Stockholm Conference. At the summit, five documents were produced: the Climate Change Convention, the Declaration of Principles on Forest Conservation, the Convention on Biological Diversity, Agenda 21, and the Rio Declaration. It is the last of these that is relevant to this study. The Rio Declaration is an effort to update the Stockholm Declaration. Of particular importance is principle 2, which revises Stockholm principle 21 by placing greater emphasis on the sovereign prerogative to develop one’s own resources.215 This was done to satisfy the developing states’ desire to ensure that environmental ‘‘restrictions’’ (the Declaration is technically nonbinding) would not hinder their growth. Unfortunately, the concession actually decreases environmental protection, for development will assume greater weight in the balancing process. Additionally, the emphasis on development highlights the Declaration’s relatively anthropocentric nature. Indeed, it exemplifies the fact that evolution toward an intrinsic value approach is most likely to come in presently developed countries. After all, it is only logical that basic human needs must be satisfied before a cognitive prism other than an anthropocentric one can be internalized. Despite this rather restrictive view, the Rio Declaration, unlike its predecessors, directly addresses the effect of warfare on the environment. In principle 24, it characterizes warfare as ‘‘inherently destructive of sustainable development’’ and notes that states must, therefore, ‘‘respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.216 It is not surprising that the Declaration included this principle, coming as it did on the heels of the Gulf War. Though an exhortation to comply with existing law is purely hortatory, and the admonition to cooperate merely aspirational, the Rio Declaration provides additional evidence that environmental damage during combat remains in the international spotlight. Finally, the Rio Declaration handles the issue of state responsibility for environmental damage by urging further development in that area of the law. It encourages states to address liability and compensation issues through national

215

Principle 2 of the Rio Declaration provides: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Rio Declaration, supra note 114, princ. 2 (emphasis added). The next two principles cement the theme: ‘‘The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’’ Id. princ. 3. ‘‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.’’ Id. princ. 4. 216 Id. princ. 24.

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legislation. Recognizing, however, that the problem is one of international scope that requires an international remedy, the Declaration also exhorts states to ‘‘cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by their activities within their jurisdiction or control to areas beyond their jurisdiction.’’217 A last document of importance among nonbinding instruments is the Draft Articles on State Responsibility of the International Law Commission (ILC).218 In article 19(3)(d), the ILC recommends that ‘‘a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas,’’ should be regarded as an international crime.219 To date, the article remains purely aspirational. Nevertheless, it is another indication that the environment per se is increasingly deemed deserving of protection.220 In terms of binding international environmental law, the most basic and widely accepted traditional principle is expressed in the maxim sic utere tuo ut alienum non laedas—use your property in such a manner so as not to injure another. This principle was the basis for the holding in Trail Smelter.221 The case involved a smelter that was discharging sulfur dioxide near the town of Trail in British Columbia. According to the United States, the sulfur dioxide drifted over parts of the state of Washington, thereby damaging commercial forests. The United States and Canada referred the case to an arbitration tribunal, which held for the United States on the grounds that countries have a duty not to use, or allow the use of,

217

Id. princ. 13. International Law Commission Draft Articles on State Responsibility, [1980] 2 Y.B. Int’l L. Comm’N 26, U.N. Doc. A/35/10. In 1947 the U.N. General Assembly established the ILC for the purpose of conducting international law research and drafting conventions. Its membership includes internationally recognized scholars and practitioners of international law. 219 Id. article 19, para 3(d). 220 Note that this article is referring to state crimes, not individual crimes under international law. Professor Greenwood has placed this in appropriate perspective: 218

Whether the Commission’s attempt to create a concept of State crimes separate from other breaches by states of their international obligations will prove acceptable and whether it will actually make any difference to the substantive law (as opposed to such issues as the standing to bring a claim) is debatable. What matters for present purposes is the clear recognition that a State incurs responsibility under international law for the breach of its environmental obligations. Greenwood 1996 (manuscript at 2). 221 Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1911 (1941). For an interesting revisionist view of the case, see Mickelson 1993.

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their territory for activities harmful to another state.222 Since then, the principle has been reiterated in international agreements and domestic tribunals.223 Drawing on tort law, the arbitration award emphasized that the plaintiff has to show both material damage and causation. Purely speculative damage is not actionable.224 Little additional case law specifically addresses environmental damage. Two interesting cases that might have moved the law forward, had they been decided on the merits, are the Nuclear Test Cases.225 Resorting to the ICJ, New Zealand and Australia charged that French atmospheric nuclear testing in the South Pacific harmed them. The case was never heard on the merits because France voluntarily ceased testing. When it did so, the ICJ dismissed the case as moot.226 Interestingly, prior to the French agreement to halt the tests, the court issued interim relief that

222

See Trail Smelter, 3 R.I.A.A. at 1965. The arbitral tribunal stated: [U]nder the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

Id. Interestingly, in addition to international law, the arbitral tribunal looked to domestic law, including such U.S. Supreme Court cases as Missouri v. Illinois, 200 U.S. 496 (1906) (water pollution) and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (air pollution). See Trail Smelter, 3 R.I.A.A. at 1964–1965. 223 See, e.g., LOS Convention, supra note 172, article 194, para 2 (‘‘States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights…’’); see also Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, pmbl., 18 I.L.M. 1442 [hereinafter Air Pollution Convention]. For examples of national cases, see Antoine 1992, at 519 n.4 (citing cases decided in Strasbourg and Rotterdam). 224 Though no other international cases involve environmental damage as a core issue, others bear more generally upon uses of a state’s territory that cause damage beyond its borders. See, e.g., Corfu Channel (UK v. Alb.), 1949 I.C.J. 4 (Apr. 9). Corfu Channel involved two British warships that were damaged in 1946 when the vessels hit German mines in Albanian waters in the Straits of Corfu. Several sailors were killed. On the issue of state responsibility, the ICJ ruled in the United Kingdom’s favor, finding that Albania must have known of the mines’ presence, and did nothing to warn the ships despite its duty to do so. As it bears on the environment, Corfu Channel stands for the principle that a state is obligated to refrain from allowing its territory to be used in a fashion that causes harm to others. See id. at 22; see also Lake Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281 (1957) (holding that although Spain cannot preclude France from using upstream water as it sees fit, as matter of equity, France should consider Spain’s counterproposals for use). 225 Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20); Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457 (Dec. 20). 226 See Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. at 271–272; Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. at 477–478.

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directed France to stop testing.227 While this might be characterized as suggesting sympathy for Australia and New Zealand’s position, a better reading is that it was merely standard injunctive relief designed to foreclose the possibility of irreparable harm. General acceptance of the Trail Smelter principle was signaled most clearly when the American Law Institute included a section addressing the concept in its Restatement (Third) of Foreign Relations Law of the United States.228 Since it succinctly sets forth not only the substantive law, but also the concept of state responsibility, it merits quotation in full: (1) A state is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control (a) conform to generally accepted international rules and standards for the prevention, reduction and control of injury to the environment of another state or of areas beyond the limits of national jurisdiction; and (b) are conducted so as not to cause significant injury to the environment of another state or of areas beyond the limits of national jurisdiction. (2) A state is responsible to all other states (a) for any violation of its obligations under Subsection (1)(a), and (b) for any significant injury, resulting from such violation, to the environment of areas beyond the limit of national jurisdiction or control. (3) A state is responsible for any significant injury, resulting from a violation of its obligations under Subsection (I), to the environment of another or to its property, or to persons or property within that state’s territory or under its jurisdiction or control.229 Would this principle apply in times of armed conflict? That would depend on the context. The principle is less about the environment than about state responsibility for the use of its territory. In Trail Smelter, for example, the importance of the environmental element is subsumed in the broader principle imposing an obligation to protect other states from injurious acts emanating from within one’s own borders. Characterized this way, it would be illogical for such a principle to apply between belligerents, for the use of one’s territory to damage an enemy is the essence of warfare.

227 See Nuclear Tests (Austl. v. Fr.), 1973 I.C.J. 99 (Interim Protection Order of June 22); Nuclear Tests (N.Z. v. Fr.), 1973 I.C.J. 135 (Interim Protection Order of June 22). 228 Restatement (Third) of Foreign Relations Law of the United States, § 601 (1987) [hereinafter Restatement (Third)]. 229 Id. Professor Walker has argued that the Restatement may not be very helpful when law of armed conflict issues interact with the law of the sea and environmental law. See Walker 1996, manuscript at 192.

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But what about harm caused to nonbelligerents? There is nothing necessarily inconsistent between an obligation to avoid causing harm to the territory of a nonbelligerent and engaging in hostilities with a third state. Nevertheless, this is a more complex question. The most basic principle of neutrality law is that the territory of neutral powers is generally inviolable.230 Would the passage of pollutants into a nonbelligerent’s territory constitute a violation of territorial integrity? It might not; Canada’s breach in Trail Smelter was that it caused damage from within its territory, not that substances originated there and passed into the United States. The key is effect, not movement. Furthermore, the neutrality principle was traditionally based on physical intrusions, usually by military assets of the belligerents.231 A better approach is to recognize that neutrality law is premised on the need to balance the rights of neutrals and those of belligerents during armed conflict. In other words, Trail Smelter should stand for the premise that causing, or allowing to be caused, environmental damage in another country can lead to state responsibility unless belligerent interests served by the action in question outweigh the victim state’s interests in avoiding the damage. Relevant factors would include (a) the magnitude of harm caused and (b) the nature of the threat to the ‘‘breaching’’ state that necessitated the harmful actions.232 This mode of analysis is not unprecedented in international law. Blockade law, for instance, emerged from a need to balance belligerents’ interests in effective warfare with neutrals’ interests in international commerce.233 It would be reasonable to conduct an analogous balancing test here. In much the same way that an interest in international commerce arose in the nineteenth century, an interest in being free from environmental damage has surfaced in the latter half of the twentieth century. It is therefore appropriate that sovereignty interests in the use of one’s territory, and in effectively conducting combat operations, yield to some extent in the face of growing international concern over the environment. Environmental treaty law is much narrower than the general principles discussed above, in that it tends to focus on a single component of the environment. In fact, the only rules that are designed to protect the environment in general appear in nonbinding instruments. Of the multitude of environmental provisions scattered throughout international conventions, and the many international, regional, and bilateral agreements addressing specific issues, three have been

230 See Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, article I, 36 Stat. 2310; see also AFM 27-10, supra note 175, ch. 9 (land warfare); Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415. 231 On the purposes underlying the law of neutrality, see Norton 1976; Williams 1980. 232 The remedy for a breach is set forth in Sect. 602(1) of the Third Restatement: ‘‘A state responsible to another state for violation of Sect. 601 is subject to general interstate remedies to prevent, reduce or terminate the activity threatening or causing the violation, and to pay reparations for the injury caused.’’ Restatement (Third), supra note 228, § 602(1). 233 See Schmitt 1991, 24–33.

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selected for sake of illustration: the Law of the Sea (LOS) Convention,234 the Convention for the Protection of the Ozone Layer,235 and the Convention on LongRange Transboundary Air Pollution.236 As mentioned earlier, the essential task when considering the issue of peacetime environmental prescriptions is not to catalogue them, since they constitute a body of law that is constantly evolving, but rather to understand when peacetime instruments and legal principles apply in armed conflict. The LOS Convention is the first global attempt to limit marine pollution in any comprehensive way.237 This 1982 instrument, which entered into force in 1994, requires states to take whatever measures are necessary ‘‘to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal.’’238 It also restates the general principle that states must ensure that activities over which they exercise control or jurisdiction do not cause damage to other states or the environments thereof.239 Interestingly, this standard does not contain the Third Restatement’s qualifier that only ‘‘significant’’ damage will trigger the protections. While these statements appear broad, the LOS Convention excludes vessels owned or operated in noncommercial service by a government, including warships, from compliance with its marine protection principles.240 Does this mean that the Convention is devoid of environmental provisions that might offer 234

LOS Convention, supra note 172. Ozone Convention, supra note 206. 236 Air Pollution Convention, supra note 223. 237 See LOS Convention, supra note 172. One of its precursors, the 1958 Convention on the High Seas, addressed marine pollution in only two provisions. Article 24 required state regulation of marine pollution by oil discharges from vessels, pipelines, or deep seabed activities, and article 25 called upon parties to prevent pollution of the seas from radioactive materials. See Convention on the High Seas, Apr. 29, 1958, articles 24–25, 13 U.S.T. 2312, 450 U.N.T.S. 82. The nonbinding Stockholm Declaration exhorted states to take ‘‘all possible steps’’ to prevent marine pollution. Stockholm Declaration, supra note 203, princ. 7. 238 LOS Convention, supra note 172, article 194, para 1. The LOS Convention defines pollution of the marine environment as 235

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities. Id. article 1, para 1(4). 239 See id. article 194, para 2 (‘‘[s]tates shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment.’’). 240 See id. article 236 (‘‘The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service.’’).

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protection in wartime?241 It does not, because a state might cause the spill of pollutants (e.g., oil) from vessels that are not exempted, as the Iraqis did when they began releasing oil from commercial tankers during the Gulf War.242 More importantly, the agreement encompasses activities other than releases from vessels. For instance, the Convention’s general principles specifically apply to minimizing the release of ‘‘toxic, harmful or noxious substances, especially those which are persistent, from land-based sources.243 The release of oil from shorebased facilities during the Gulf War immediately comes to mind. The principles also extend to ‘‘installations and devices operating in the marine environment’’244 other than vessels, such as offshore oil platforms. Additionally, parties are obligated to adopt, through domestic legislation and in cooperation with international organizations, laws and measures to preclude marine pollution originating from shore-based or seabed activities, as well as from or through the atmosphere.245 The problem with these prescriptions is their inherent imprecision. By what standard, for example, should a state’s cooperation with international organizations be measured? What steps satisfy the requirement to ‘‘minimize’’ releases? What does the phrase ‘‘necessary measures’’ encompass? There is little question that the LOS Convention will be difficult to apply in practice. That said, law is seldom precise, nor should it always be. It has to be flexible enough to fit a multiplicity of situations—many unforeseen when the law emerges. Moreover, the concerns expressed here are primarily about negligent or reckless conduct; intentional conduct, such as Iraqi conduct during the Gulf War, would be less susceptible to interpretive variation under the Convention. As with all peacetime law, though, applicability of the LOS Convention would have to be tested against the contextual standards suggested during the discussion of the theory of differentiation. The Convention’s enforcement regime is unique in approach. With reference to pollution, it places authority, depending on the specific circumstances, in the hands of the flag, port, or coastal state. Furthermore, it provides for an International

241

Though not on point at this juncture, the Convention contains two provisions relevant to the issue of the jus ad bellum. In article 88, it provides that ‘‘[t]he high seas shall be reserved for peaceful purposes,’’ whereas in article 301 it states that [i]n exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. Id. article 301. Of course, neither article would preclude a state’s exercise of appropriate collective or individual self-defense under article 51 of the U.N. Charter. 242 Iraq ratified the LOS Convention in 1985. 243 LOS Convention, supra note 172, article 194, para 3(a). 244 Id. article 194, para 3(d). 245 See id. articles 207–208, 212.

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Tribunal for the Law of the Sea to resolve Convention-based disputes. At the time of signing, ratifying, or acceding to the Convention, parties are required to accept the jurisdiction of this body (currently being established) or of the International Court of Justice, or to agree to submit disputes to arbitral proceedings. By peacetime enforcement standards, this is a particularly robust system for remedying alleged wrongs. A second sample treaty with potential prescriptive effect during armed conflict is the 1985 Vienna Convention for the Protection of the Ozone Layer (the Ozone Convention).246 Its normative component is article 2(1), by which parties agree to ‘‘take appropriate measures in accordance with the provisions of [the] Convention and of [related protocols] to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.’’247 Beyond this, the agreement essentially is designed to foster the exchange of information on potential ozone layer damage. As to enforceability, the Convention has few teeth. It provides for dispute settlement through negotiation or mediation, and encourages parties to agree in advance to the compulsory jurisdiction of the ICJ or to binding arbitration.248 The third sample peacetime agreement is the Convention on Long-Range Transboundary Air Pollution of 1979.249 In this agreement, party states express their determination to ‘‘protect man and his environment against air pollution and… endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution.’’250 In the Convention, transboundary air pollution is defined as pollution originating in one state and causing harm in another, but in which the relative contribution from individual sources cannot be determined.251 This is an attempt to escape from the classic tort problems of determining causation and harm. In this sense, it certainly represents a step beyond the principle of responsibility expressed in Trail Smelter. On the other hand, though the ambit of responsibility is stretched beyond the traditional levels, the standard of responsibility is de minimis. Note the terminology—‘‘endeavour,’’ ‘‘as far as possible,’’ and ‘‘gradually.’’ It would be difficult to craft a more aspirational norm. To compound matters, the Convention does not impose conditions of responsibility or liability; rather, it encourages ‘‘negotiation or resort to other ‘‘method[s] of dispute settlement acceptable to the parties to the dispute.’’252

246

Ozone Convention, supra note 206. Id. article 2, para 1. Adverse effects are defined as ‘‘changes in the physical environment or biota, including changes in climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind.’’ Id. article 1, para 2. 248 See id. article 11. 249 Air Pollution Convention, supra note 223. 250 Id. article 12. 251 See id. article 1. 252 Id. article 13. 247

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After a review of the state of peacetime environmental law and its applicability during armed conflict, it should be apparent that reports of its death during armed conflict are greatly exaggerated. Nevertheless, much uncertainty plagues the topic. The most reasonable approach is one in which a treaty’s survival during armed conflict depends on a contextual evaluation employing factors such as those suggested above. As to the Trail Smelter principle, applicability during hostilities optimally should depend on a balancing of the interests of belligerents and nonbelligerents. The substantive law presents less of an analytical problem because, at least to date, it offers little normative guidance of direct relevance to warfare beyond the hortatory and aspirational. Peacetime law was not intended to respond to the intent to create environmental destruction or to use the environment as a weapon. What is contemplated, then, is extension of a law designed primarily for reckless, negligent, or intentional acts motivated by a purpose other than harm. This is reflected in the limited remedies available to injured parties. Also apparent is an inherent tension between developing and developed states over how to balance the requirements of development with the desire to protect the environment. Application of peacetime environmental law during armed conflict will be limited by competing interests, much as the Trail Smelter principle was limited by belligerents’ interests in effective warfighting. The result is that, despite some useful provisions (and even if consensus could be reached on its applicability), peacetime environmental law contributes little to wartime environmental protection. Finally, mention should be made of legal responsibility, a topic applicable to both war and peace.253 Whereas the law of armed conflict provides for individual responsibility (e.g., war crimes), peacetime instruments generally do not. For instance, the Third Restatement provisions do not mention the possibility that wrongful environmental damage might rise to the level of an international crime. Therefore, to the extent that peacetime prescriptions are carried forward into armed conflict, they alone do not form the basis for criminal responsibility. Nevertheless, there is little question about state responsibility. If peacetime prescriptions remain in effect, the associated remedial provisions must logically do so as well. The principle that states are responsible for the wrongful acts of their agents—officials, armed forces, etc.—supports this premise.254 Yet, some practical and legal uncertainty remains. How does one assess responsibility in multilateral operations? Should liability be joint and several? How does one measure harm, recalling, for instance, the imprecision of initial estimates in the Gulf War? How does one handle potential harm that may not become obvious for years after an 253

An in-depth analysis is beyond the scope of this chapter. For two excellent studies of the topic, see Green 1996; Greenwood 1996. 254 Numerous law of war treaties provide for such responsibility. See, e.g., Hague IV, supra note 130, article 3 (‘‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’’). A nearly identical provision is found in Protocol I, supra note 8, article 91.

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event? Who has standing to assert claims for damage caused to the global commons? Are the relevant obligations erga omnes, such that they can be enforced by any state?255 How should the two peacetime principles that relieve a state of responsibility—distress and necessity—apply in a wartime context?256 These and other gaps remain in this essential component of the legal regime designed to deter environmental destruction.

8.3.2 Customary Jus in Bello Custom is at the core of the jus in bello. Indeed, as a source of the law of war it predates any of the applicable treaty law currently in force.257 To achieve the status of customary law, a norm must be evident in widespread state practice over time and the international community has to exhibit opinio juris sive necessitatis, a conviction that the rule is obligatory.258 In other words, custom is both a behavioral and a perceptional entity.

255

The concept of erga omnes appears in the Barcelona Traction Case. There, the ICJ held that an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State… By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in the contemporary international law, from outlawing acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.

Barcelona Traction, Light & Power Co. (2d Phase) (Belg. v. Spain), 1970 I.C.I. 3, 32 (Feb. 5). The court did not indicate how obligations erga omnes were to be enforced. 256 See International Law Commission Draft Articles on State Responsibility, supra note 218, articles 32–33; see also Leibler 1992, at 76–77. 257 That custom can form the basis for war crimes charges was acknowledged by the International Military Tribunal at Nuremberg. The indictment specifically noted that ‘‘[a]ll the defendants committed War Crimes… [pursuant to] a Common Plan or Conspiracy… This plan involved… the practice of ‘total war’ including methods of combat and of military occupation in direct conflict with the laws and customs of war.’’ Indictment, International Military Tribunal, Nuremberg, 1 T.M.W.C. 27, 42–43 (1947) (emphasis added). Today, this premise is accepted as a principle of customary international law. 258 The Statute of the International Court of Justice provides that the court shall apply custom as ‘‘evidence of a general practice accepted as law.’’ Statute of the International Court of Justice, June 26, 1977, article 38, para 1(b). The Third Restatement notes that custom ‘‘results from a general and consistent practice of states followed by them from a sense of legal obligation.’’ Restatement (Third), supra note 228, § 102(2); see also The Paquete Habana, 175 U.S. 677 (1900); Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 6 (Apr. 12); Asylum (Colom. v. Peru), 1950 I.C.J. 266 (Nov. 20); S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

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The foundational customary principle of the law of war, codified in Hague IV and elsewhere, is that the right of belligerents to adopt means of injuring the enemy is not unlimited.259 From this principle flow a number of subsidiary principles that underlie much of the remainder of the law of war, whether found in custom or treaties.260 They are perhaps best understood as grouped into four broad categories: military necessity, proportionality, humanity, and chivalry. Chivalry, which involves such matters as perfidy and ruses, is of only peripheral relevance to this study and will not be discussed.

8.3.2.1 Military Necessity Military necessity prohibits destructive or harmful acts that are unnecessary to secure a military advantage. It is well settled that a violation of the principle can constitute a war crime. Article 6(b) of the Charter of the International Military Tribunal specifically characterizes ‘‘the wanton destruction of cities, towns or villages or devastation not justified by military necessity’’ as a war crime.261 The offense is further clarified in a frequently cited passage from a well known war crimes trial, The Hostage Case: [Military necessity] does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.262

By this standard, an actor must be able to articulate the imperative military advantage intended to be gained. In other words, the act must be neither wanton nor of marginal military value, and military motivations must underlie it. There are three basic challenges in applying the principle of military necessity to environmental damage. First, the standard invites interpretive variance. Most importantly, what do the phrases ‘‘imperatively demanded’’ and ‘‘reasonably connected’’ mean? In other words, how ‘‘direct’’ must an advantage be before an

259

See, e.g., Hague IV, supra note 130, article 22; Protocol I, supra note 8, article 35, para 1. The principle was first recognized in the Declaration of St. Petersburg, 1868, reprinted in 1 Am. J. Int’l L. 95 (Supp. 1907). 260 Unfortunately, though the substance of these principles is subject to little debate, the form in which they are expressed varies. For instance, the Air Force employs the categories of military necessity, humanity, and chivalry, with proportionality folded into necessity, whereas the Navy uses necessity, proportionality and chivalry. Compare AFP 110-31, supra note 175, at 1-5 to 1-6, with NWP 1–14 M, supra note 178, at 5-1. In substance and application, though, the principles are identical across the military services. 261 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, article 6(b), 59 Stat. 1544, 82 U.N.T.S. 279. 262 Hostage (U.S. v. List), 11 T.W.C. 759, 1253–1254 (1950).

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act becomes militarily necessary? A subjective concept, directness can be placed along a continuum, and at some point a ‘‘direct’’ advantage becomes ‘‘remote’’ in nature. The question is where. The fact that the delineation point is contextually determined renders it difficult to identify. All would agree, for example, that it generally would be permissible to set fire to a field through which a superior enemy force is advancing in order to halt the advance or mask one’s own retreat. The advantage is direct and military in nature. But would it be permissible to set fire to the field in order to demoralize the rural population and turn it against continuation of the war? Clearly not. The advantage is military only in a convoluted sense and is obviously remote. In legal terms, the chain of causation is too attenuated. This is an easy case. The tough ones lie in the middle. Using a Gulf War example, did setting oil wells on fire to obscure Coalition targeting offer a direct military advantage? If it did, at what point had enough wells been set ablaze to suffice, so that igniting further wells was ‘‘wanton’’? The contextual character of military necessity was equally apparent in the post-World War II war crimes trials, in which scorched-earth policies were held to be acceptable when motivated by military need in exceptional circumstances, but were condemned when the resulting destruction was found to be wanton.263 Thus the difficulty in understanding whether an act is militarily necessary is compounded by the fact that it cannot be assessed in the abstract. Only in extreme cases will violation of the principle be apparent on the face of the action. A related definitional problem lies in discerning requisite likelihood. Return again to the Gulf War. If the Iraqi oil spill was in fact intended to foil amphibious landings (and did not violate any other legal prescriptions), how likely must those landings have been before the advantage sought was direct? Is there a point at which the low likelihood of occurrence renders an advantage remote? There must be, for surely no one would argue that military necessity is consistent with destructive measures taken to counter any theoretical threat. To shift direction slightly, how does the likelihood of success figure in? A tactic or operation may very well entail an obvious chain of causation, and the threat posed may have a high likelihood of occurrence, but what degree of certainty of success is required to reach the ‘‘direct’’ advantage threshold? Unless one is willing to conclude that the principle of military necessity is intended to prevent only wanton (as opposed to wildly speculative) acts, the likelihood of occurrence and success must be directly relevant to military necessity calculations. This latter point leads to the second challenge in determining military necessity, that of ascertaining intent. The essence of the principle is a prohibition on wanton, or largely irrelevant, destruction. Wantonness, in turn, implies the absence of intent to secure a military advantage. Thus, though formal statements of the principle, found in such sources as law of war manuals, often do not include an intent element, in practice one must be read into the prescription. The Gulf War

263

See Pictet 1958, p. 302. The set of four ICRC Commentaries edited by Jean Pictet is the definitive source on interpretation of the Geneva Conventions of 1949.

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illustrated this point. For instance, the DOD Report asserted that had Iraq’s goal been to obscure target acquisition by Coalition pilots, it could simply have opened the valves and ignited the oil that spilled. Therefore, the destruction of the oil wells themselves was taken as an indication of Iraq’s ‘‘punitive’’ intentions.264 But had the intent not been punitive, the requirements of military necessity would probably have been met. Therein lies the quandary. Given that intent is relevant, how is it to be determined in cases in which the act in question is reasonably subject to differing interpretations? Acknowledging such interpretative and applicative difficulties hardly represents a jurisprudential epiphany on the subject of military necessity. The question, however, is whether environmental issues will exacerbate these difficulties. Unfortunately, they will, at least until warfighters, military lawyers, and scientists better understand the relationship between the art and science of warfare and the environment. Consider a few theoretical operational possibilities. How might a commander fold the ability to control weather into an offensive air operation? Of what use could obscurants be in defending against airborne assaults? How might flooding be used to protect a flank in an armored advance? These and other issues are only beginning to be explored. To some extent, most emergent technologies or techniques present this type of dilemma. The more difficult it is to articulate a concept of employment, the harder it will be to justify an action as being of direct military advantage. Paradoxically, this difficulty also will hinder unambiguous characterization of a novel practice as a violation of the military necessity principle. To complicate matters further, the less established the technique or tactic in military practice, the more difficult it will be to impute intent to the actor. Lastly, necessity is harder to calculate because novelty generally lowers the reliability of estimates of the probability of success. A final criticism of the principle is that it operates at cross purposes with the aims of the law of armed conflict, particularly its environmental component. As one commentator has noted, ‘‘[t]he dictates of military necessity, as assessed by opposed leaderships, have taken consistent precedence over the laws of war in almost every critical aspect of belligerent policy.’’265 While it is true that commanders and their judge advocates occasionally may argue that military necessity justifies an action, such assertions are really about proportionality, not about necessity. After all, the statement implies that a balancing has occurred. Military necessity, in contrast, is less akin to balancing than it is to placement along a continuum. Thus, the criticism wrongly characterizes the assertion of the relevance of ‘‘necessity’’ analysis. Much more importantly, the criticism seems to turn military necessity on its head. Recall the international law maxim that what is not forbidden is permitted. Military necessity operates within this paradigm to prohibit acts that are not militarily necessary; it is a principle of limitation, not authorization. In its legal

264 265

DOD Report, supra note 69, at O-27. Falk 1989, p. 168.

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sense, military necessity justifies nothing. The criticism also mischaracterizes military necessity as in opposition to the law of war, when it is, in fact, an integral part of that corpus of law. The criticism would be more appropriately directed to the principle of war labeled ‘‘objective,’’ rather than to a principle of law. It makes little sense to suggest that the legal principle of necessity runs counter to the law of war itself. The discussion of challenges presented by the principle of military necessity is not meant to suggest that necessity is becoming passé vis-à-vis environmental issues. Instead, the point is merely that before accepting the premise that existing law is adequate, we must understand how much more complex the task of judging military necessity is made by factoring in environmental considerations.266

8.3.2.2 Proportionality The difficulties in assessing military necessity pale beside those surrounding proportionality. Proportionality is a concept complementary to, and often considered a component of, military necessity.267 It is perhaps best characterized as the principle of customary international law that prohibits injury or damage disproportionate to the military advantage sought by an action. Measured not in terms of immediate advantage, but rather with regard to the operation as a whole, the concept extends both to collateral damage suffered by civilians and civilian objects and to destruction of otherwise legitimate targets.268 Being relative, proportionality can be placed along a continuum. At some point on that continuum a proportionate impact becomes disproportionate, and the balance shifts. Because dissimilar value systems—military and humanitarian—are being compared, this point is very difficult to locate. For example, if the target is a command post near a residential area, how many surrounding homes may be destroyed before the effort to disable it becomes disproportionate? Similarly, what is the value of an enemy aircraft in terms of human lives? How do you compare the suffering caused by the 266 The difficulty in applying the concept was recognized in the Greenpeace Study, as was the imprecision of definition:

It is in the interpretation of military action, and specifically the concept of ‘‘military necessity’’ (the anticipated military value of one’s own action), that there is significant international disagreement as to proper conduct during war. Military necessity is not defined anywhere in the laws of war, but it is intertwined with proportionality and discrimination, the central principles of the ‘‘just war’’ tradition. Arkin et al. 1991, at 115. 267 The concept often is confused with a principle of war, economy of force. Economy of force is a common sense warfighter’s rule of thumb: It does not make sense to apply more force than is necessary to attain the objective. The legal concept of proportionality, in contrast, measures advantage against damage caused. 268 Generally, though, proportionality regarding legitimate targets is more easily dealt with as a military necessity issue.

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destruction of joint civilian-military facilities, such as electrical generating facilities, with the military utility of disrupting the enemy’s command and control?269 The difficulty of making proportionality calculations has been a key impetus towards codification of the law of war. In theory, codification renders legal concepts more manageable. It also eases the task of disseminating them to those charged with deciding on and executing courses of action. Unfortunately, despite the growing body of codified law of war, in many cases no particular provision exists on point to facilitate a specific proportionality calculation. Faced with this predicament, warfighters sometimes are instructed to use ‘‘no more force than necessary’’ to achieve their objective. However, economy of force is a principle of war, not a valid legal prescription under the law of war. In fact, there are situations in which the application of minimum necessary force against an otherwise lawful target would produce disproportionate results. Therefore, absent a specific provision in treaty law, we are left to our own value systems for guidance (or, perhaps more accurately, the value system deemed authoritative by the international community). Is the law, therefore, nothing more than an articulation of that fighter pilot adage to ‘‘trust your gut’’? Or is it imbued with a meaning more distinct and developed, perhaps in the sense of the Martens Clause’s dictates of public conscience? Whatever the answer, any value-based balancing test will have disturbing implications for legal predictability and consistency. Value is a cultural and contextual concept: Different societies may value life, suffering, or objects differently. The play of this contextuality grows exponentially when considering the environment. If it is difficult to agree on proportionality when human life is in the balance, how can we hope to achieve consensus on the import of destroying habitats, harming air quality, or disturbing food chains? The quandary is that proportionality requires the act of value balancing, but the very subjectivity of value renders agreement on specific balances highly elusive. Just imagine, for example, the difference between the values that the United States and a failing state might impute to the environment. Not only do disparate value paradigms impede objective proportionality estimations, but even within our own society the debate over anthropocentric and intrinsic value is an inevitable source of contention. All reasonable people would agree that the value of the environment should be measured, at least in part, by its direct impact on the state of human existence. Some would go further and argue that the environment should be valued in and of itself, even in the absence of a specific benefit to humankind. In other words, the actual value of the environment is its anthropocentric value plus its intrinsic value. This is the moderate intrinsic value approach. Others would take the intrinsic value perspective to its extreme by asserting that the environment merits protection even at human expense. In this 269

For a discussion of proportionality in the context of attacks on electrical targets, see William Arkln, Target Iraq: a Documentary History of the Air War (manuscript at ch. 9, on file with author). Mr. Arkin, a human rights activist who specializes in military affairs, puts an interesting, albeit unconventional, spin on how to make proportionality decisions in difficult cases.

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radical cognitive perspective, human and environmental values are distinguishable—and equivalent—in the abstract. The more moderate intrinsic value approach would urge recognition of the autonomy of environmental value, but, all things being ‘‘equal,’’ subordinate it to human values if forced to choose between the two. The dilemma is that each approach will yield a different value for the environmental loss that military action causes. For instance, the first evaluator will see in a forest a useful source of raw materials. The second will acknowledge that quality, but also will characterize the forest as an entity demanding respect in its own right. For the third evaluator, securing respect for the forest may even require sacrificing human values. Nevertheless, in each of these cases the military advantage obtained by damaging the forest is fixed. This simple example shows that the operation of the proportionality equation will be skewed not only by the subjectivity of value estimates, but also, and perhaps more importantly, by disagreement over how and on what basis to measure value in the first place. The tension between anthropocentric and intrinsic valuations is evident at the state level as well, a point illustrated at the Rio Conference by the developing states’ insistence that environmental protections be balanced by the needs of development. Assuming this represents a trend, does it portend a developed/ developing state split in attitude towards the appropriateness of the various cognitive perspectives? Perhaps the best way to characterize the situation is to suggest that while the cognitive direction is very roughly constant across the international community (no one seems to be moving in the other direction), the velocity of the phenomenon is much greater in developed states. This is logical, for there is less economic friction in the developed world. If the assessment is accurate, the cognitive gap between the camps will grow, at least until the economic gulf between developed and developing states narrows. The gap will pose the same obstacles to predictable and uniform application of the proportionality principle as differing cross-cultural valuation does. This in turn raises another point regarding valuation in the proportionality calculation process: Value can be temporally determined.270 Valuation paradigms inevitably change as history evolves, a fact aptly demonstrated by the rise of environmental consciousness in the last half-century. As this occurs, proportionality calculations shift accordingly. For example, reflect on the assessment that would be made of the Huayuankow Dam incident if it were to occur today. One scholar has suggested that this temporal feature of proportionality, and of customary law generally, is actually beneficial, for it permits the development of law

270

See Bothe 1991, at 56.

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to parallel the development of societal values, avoiding the difficulties inherent in applying treaty law to novel situations.271 The phenomenon of evolving value systems has many potential causes: human experience, understanding of the environment, and even technology. Of particular interest among law of war scholars and practitioners is the enormous attention that has been paid to the use of ‘‘smart’’ weapons during the Gulf War. To the extent that it may be technologically possible to limit collateral damage even further, there will inevitably be a tendency to ratchet down the acceptable level of collateral damage, environmental or otherwise. While the effect of new technologies may be reflected primarily in necessity analysis, there is still a subtle impact on the proportionality decision processes. Though there objectively may be no shift in the value of the damaged environment (anthropocentric or intrinsic), a subjective revaluation is bound to occur once a perception that the damage can be avoided takes hold. This is because valuations are in part the product of emotions, and we are more emotional about entities damaged ‘‘unnecessarily.’’ Once decision makers are sensitized, proportionality calculations will be affected even when the necessity threshold has been met. Albeit not in the context of new technology, the Gulf War environmental experience offers a telling example of how this sensitization can work over time to alter existing valuation paradigms. When the Iraqis began spilling oil into the Persian Gulf and setting fire to well heads, actions that many felt were clearly unnecessary, the international community was enraged and became sensitized to the issue. As a result, operations posing environmental risks in the next war are likely to be evaluated very closely before being approved as proportional. What is interesting is that this is so despite the fact that, objectively, the environment is no more valuable than it was 6 years ago. On the contrary, since predictions of what Gulf War damage would do to the environment were themselves exaggerated, environmental concerns actually should have diminished somewhat. Yet that has not occurred. Valuation is, therefore, a temporally, contextually, culturally, and conceptually determined process. Thus far, though, the complexity of the comparison between military advantage and the resultant destruction or damage has been explored only in its two-dimensional aspect. Regrettably, it is necessary to complicate matters further by factoring in a third dimension: environmental v. human (as opposed to military advantage) valuation. This dimension is present in two contexts: (1) risk to military personnel, and (2) nonenvironmental collateral damage. Several hypotheticals may help illustrate the point. 271

As Wil Verwey has written: Subjecting principles of customary law to a modern, liberal interpretation, i.e. a timerelated interpretation which takes account of changing and emerging values cherished by society, may be less objectionable than it would be in the case of treaty law. In the former case, state parties cannot claim so easily that they have accepted a precise obligation as formulated in text, and that ‘‘that’s it.’’

Verwey 1995b, manuscript at 8–9.

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Assume shoulder-launched surface-to-air missiles (SAM) are occasionally fired at military aircraft from a residential district along the only feasible route to the target area. Though the risk to the aircraft is de minimis in light of the planned flight profile, it remains theoretically possible that a lucky hit might be scored. Can the entire residential area be bombed in hope of killing the lone soldier who launches the SAMs? Obviously not. It is easy to make this calculation for two reasons. First, the jus in bello is neutral; there are no ‘‘bad guys.’’ In this hypothetical, a remote risk to the life of one combatant is being weighed against certain risk to the lives of scores of civilians. That they are enemy civilians does not shift the balance. Second, the more determinative fact is that the proportionality decision in this case is a human–human calculation. However, what degree of environmental protection would justify the assumption of risk by our pilots? What if the SAMs were being fired from a dam, the destruction of which would destroy crop lands (anthropocentric valuation)? Harder still, what if destruction of the dam would destroy nonfood source animal habitats (intrinsic worth valuation)? We are back to the apples and oranges problem, albeit writ large. The task is no longer deciding whether to forgo gain, but instead whether to assume risk to protect the environment. Of course, the reflexive response is that environmental values cannot be balanced against human life, or even human suffering. But of course they can, assuming that the very concept of environmental protection in warfare is valid. Whenever a decision is made to forgo or alter an operation that otherwise meets the requirements of military necessity, the benefits of that necessity are lost. Since militarily necessary operations often are intended to lessen risk, either in the short or in the long term, a balance with human values implicitly has been made. The only way to avoid having to balance human and environmental values is to adopt a purely anthropocentric perspective in which protection of the environment is merely a byproduct. What this demonstrates is that treating the environment qua environment in making proportionality calculations muddies the waters of an already complicated process. Yet another iteration of complexity is that in certain circumstances it will be necessary to recognize that nonenvironmental risk to the targeted party, either directly or collaterally, may be increased by extending protection to the environment. For instance, should an avenue of attack that might devastate a fragile amphibian habitat be avoided if the only viable alternative will result in damaged farm land? An even broader scenario can be painted by giving the concept of military necessity wide play. Because military necessity contributes to the success of one of the belligerents, it may also hasten the end of hostilities. Thus putting aside the optimal means of securing a militarily necessary objective in the name of environmental protection may in fact lengthen hostilities, thereby negatively affecting human values. An obstacle to performing precise proportionality calculations is also apparent in determining what damage to weigh. The preceding discussion of military necessity raised the problem of likelihood of occurrence. Proportionality analysis involves an analogous difficulty in the form of uncertainty as to likelihood of harm. Simply put, when balancing collateral damage against military advantage, should

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the weight of possible damage be adjusted according to how likely the damage is to occur? Of course it should, but the problem is that whereas fairly reliable data is available on the effect of typical collateral damage (deaths, destruction of property, etc.), it is not available with regard to environmental damage. As the Gulf War demonstrated, estimates of the nature and quantum of environmental destruction can fall far from the mark. Desert Storm highlighted a related problem. In addition to the difficulties of determining what damage will be caused, there is that of deciding how far down the chain of causation to proceed. During the Gulf War, aerial bombing brought criticism from some about its ‘‘reverberating effects.’’ William Arkin, for instance, has written in detail about the unintended effects on civilians of the bombing of electrical targets.272 How should proportionality analysis be conducted when efforts to take down obvious military objectives, such as command and control nets, result in hospitals losing electricity or in similar harms to noncombatants? What responsibility do commanders have to consider reverberating effects in their legitimacy analysis? The environment can only exacerbate such quandaries. Recall the flap over the purported ‘‘Lorenz Effect,’’ in which a butterfly beating its wings in Tokyo causes a thunderstorm in New York.273 The point is that when dealing with the environment, one is making calculations based on incredibly intertwined global relationships among the environment’s seemingly infinite components. Unfortunately, despite the advances of science, we are only beginning to unravel this complexity. How, then, does one identify and take into account environmental reverberating effects? What level of environmental knowledge should be required of the commander making such assessments? To what degree must the commander attempt to ascertain potentially reverberating environmental effects? Do environmental engineers need to join judge advocates in command posts to ensure that commanders stay within the somewhat fuzzy confines of the law? These questions will prove particularly problematic because the valuation dynamics noted earlier in this section will influence each of the reverberating effects, which themselves may or may not be incorporated into the balancing process. Ultimately, it might even be asked whether it is appropriate to apply the customary law of proportionality to environmental concerns at all, for there is certainly no longstanding practice of safeguarding the environment per se during armed conflict. Arguably, environmental benefits should be solely derivative, i.e., resulting from traditional customary law protections. For example, destruction of fish on a trout farm can be seen in terms of the customary law category of civilian objects. However, what would be the significance of an act that rendered the fish stock infertile? Is that the kind of damage to civilian objects contemplated in our customary law? This matter becomes more complicated still as we move beyond

272

See ARKIN, supra note 269, at ch. 9. See generally Gleick 1987, 9–31 (discussing use of Lorenz (or Butterfly) Effect in chaos theory). 273

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anthropocentric protections. Assume that the fish are swimming free and not used as a food source. To what extent would the international community demonstrate opinio juris sive necessitatis in such a case? It is one thing to argue that the customary law of proportionality must be flexible enough to provide protection to new objects that fall into traditionally protected categories. It is quite another to argue in the absence of state practice that protections should apply to newly recognized categories. Hopefully, this discussion will have served to display again the complexity of factoring environmental considerations into the application of traditional law of war principles, in this case proportionality. Though some scholars might herald the demise of proportionality analysis,274 it remains a useful tool for securing humanitarian—and environmental—values during armed conflict. But it is no panacea; environmental considerations will complicate reliance on the principle, if only because it will be difficult to achieve consensus on what is and is not proportional. Thus, proportionality is likely to serve as a completely predictable constraint in only the most aggravated cases of environmental damage during armed conflict.

8.3.2.3 Humanity The principle of humanity prohibits methods and means of warfare that are inhumane.275 It is theoretically implicit in both military necessity and proportionality, but merits separate characterization in order to highlight particular prohibitions, such as those forbidding indiscriminate techniques276 and unnecessary suffering. That environmental destruction can easily violate the principle of humanity should be obvious. Water supplies can be poisoned, destruction of food sources can result in the starvation of innocents, or air quality can be so lowered 274 One distinguished international law scholar suggested during the Gulf War that ‘‘[t]he enormous devastation that did result from the massive aerial attacks suggests that the legal standards of distinction and proportionality did not have much practical effect.’’ Schachter 1991, p. 466. This is a minority opinion. Most commentators characterize the air campaign as well within the bounds of legality. See, e.g., Roberts 1996, manuscript at 41. 275 Among the first formal expressions of the principle was the St. Petersburg Declaration of 1868. The Declaration provided:

Considering that the progress of civilization should have the effect of alleviating, as much as possible the calamities of war; That the only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy; That for this purpose, it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity. Declaration of St. Petersburg, 1868, supra note 259, at 95. 276 An indiscriminate technique insufficiently distinguishes protected persons (e.g., civilians) and objects from legitimate military objectives.

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that respiratory distress results. Of particular concern is the environment’s susceptibility to indiscriminate use or damage. Destruction of the Huayuankow Dam is a classic example of an indiscriminate act with disastrous environmental consequences.277 Other theoretical uses of the environment, such as generating tidal waves or earthquakes, changing climate, or creating wetlands, are also inherently indiscriminate; once they are set in motion, their effects cannot be easily controlled. Given current technologies, it is difficult to envision an attack employing the environment that permits much discrimination at all. Conceptually, the principle of humanity is overwhelmingly anthropocentric in nature. After all, it is labeled humanity. Nevertheless, the humanity principle is less utilitarian than the other customary principles, for it is not necessary to conduct a balancing test when applying it. In fact, any balancing that is required to assess humanity (e.g., in determining whether the suffering was ‘‘necessary’’) will probably be accounted for during the military necessity and proportionality analyses. If we put this cumulative component of humanity aside, the bulk of what remains are ab initio prohibitions on activities that are not so much inhumane as inhuman. They are acts we intuitively recognize as inherently wrongful regardless of the context in which they occur. In a sense, they are violative of the ‘‘dictates of public conscience.’’ The concept of an inherently wrongful act may offer an avenue for expanding protection of the environment. As was noted, the central difficulty with military necessity and proportionality is comparative valuation. What the principle of humanity offers is an opportunity to move beyond that conundrum to the relatively simpler prospect of forging agreement on those things that civilized people just don’t do. The immediate obstacle to doing this in the environmental context is that the principle of humanity generally is not thought of as applicable to anything other than immediate human suffering. Thus, when environmental violence such as that which occurred during the Gulf War is considered, the analysis tends to be in terms of proportionality or necessity, not in terms of humanity. Legalistic minutiae aside, though, the global community viewed the acts as ‘‘just don’t do that’’ violations, a cognitive perspective that best comports with humanity analysis. Arguably, the world’s reaction may portend the beginning of a subtle expansion of the principle. The shift would be from a prescription understood within the ‘‘there are certain things that you do not do to human beings’’ paradigm to that of ‘‘there are certain things that human beings do not do.’’ This would temper disputes and avoid confusion about the relative value of dissimilar objects and goals. Despite the appeal of a process that eases the inherent difficulties of balancing tests, the risk of this tack is great. It presumes that in some cases environmental damage should be avoided regardless of the cost to humanity. Perhaps in truly extreme cases of environmental damage in which a correspondingly high level of human suffering is inevitable, or in which the likelihood of accruing military advantage is very low, this technique could be used as prescriptive shorthand for

277

See supra text accompanying note 17.

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humanitarian concerns. In other words, human suffering would not be ignored, but instead would simply be evaluated by a measure that offers ease of application. Such prescriptions could be crafted in terms of type of technique (e.g., oil spills), quantum of damage (e.g., long-term, widespread, and severe), target (e.g., the atmosphere), or any combination thereof. The defining characteristic, however, must be that it is not necessary to conduct a complex analysis of human suffering because the latter is presumed based on the level of environmental damage. Thus, while the approach may offer some benefits, any movement in this direction should proceed very cautiously.

8.3.3 Treaty Based Jus in Bello 8.3.3.1 Hague IV The Hague Conventions reflected changes in the nature of warfare that occurred with the Napoleonic Wars. They marked the evolution of war into a national endeavor, fought on a grand scale by armies sometimes numbering in the hundreds of thousands, and resulting in previously unimaginable carnage. This transformation led to efforts to limit the effects of armed conflict. One of the earliest was the First Hague Peace Conference, convened at the urging of Czar Nicholas II in 1899. The Conference produced three instruments designed to limit armaments and their effects.278 In 1907, a Second Hague Peace Conference was assembled on the initiative of Theodore Roosevelt. Of the 13 conventions that issued, Hague IV, which governs the conduct of land warfare, is environmentally relevant today.279 It remains in effect for its signatories, though party status is relatively unimportant because most of the treaty is now considered customary international law.280 In fact, ‘‘Hague Law’’ has become a general term of reference for laws of armed conflict designed to limit the methods and means of warfare. Article 22 of Hague IV codifies the foundational customary law of war principle mentioned earlier, that the ‘‘right of belligerents to adopt means of injuring the enemy is not unlimited.’’281 This principle is consistently cited as a conceptual

278 These Declarations included a ban on launching projectiles or explosives from the air, a prohibition on the use of projectiles containing asphyxiating or deleterious gases, and a ban on bullets that expand or flatten in the body (Dum Dum bullets). See Final Act of the International Peace Conference, July 29, 1899, reprinted in 1 Am. J. Int’l L. 103 (Supp. 1907); Declaration Concerning Asphyxiating Gases, July 29, 1899, reprinted in 1 Am. J. Int’l L. 157 (Supp. 1907). 279 See Hague IV, supra note 130. 280 This status was recognized by the International Military Tribunal in 1939. See International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946, excerpted in McDougal and Reisman 1981, p. 1050. 281 Hague IV, supra note 130, article 22.

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basis for environmental prescriptions.282 Also directly relevant is article 23(e), which forbids the employment of ‘‘arms, projectiles or material calculated to cause unnecessary suffering.’’283 It applies to the environment in a manner analogous to the unnecessary suffering component of the humanity principle. As it is treaty rather than customary law, significant expansion of article 23(e) beyond its intended anthropocentric application is unlikely. Instead, evolution in that direction will probably emanate first from its customary law counterpart.284 The most important Hague IV provision applicable to environmental damage is article 23(g). It codifies the classic military necessity principle by prohibiting acts that ‘‘destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.285 Though there is occasional discussion over whether the article is intended to protect all property or only state property, the better view as a matter of law, and that adopted by both the U.S. Army and the ICRC, is that it covers any property, wherever situated and however owned.286 Since article 23(g) is the codification of the military necessity principle, the earlier discussion of that principle also applies here.287 One further issue bearing on environmental damage revolves around the definition of ‘‘property.’’ There is little question that article 23(g) applies to tangible property such as land, cattle, crops, or water supplies. In fact, the War Crimes Commission cited article 23(g) in charges against ten German administrators of Polish forests for the unnecessary destruction of timber resources.288 Its applicability in other environmental contexts is not as clear-cut. For instance, is the atmosphere ‘‘property’’? What about climate or the ozone layer? How would destruction of a straddling stock of fish or a migratory bird species be handled? These examples illustrate the determinative importance of evolving property concepts to contemporary and future understandings of article 23(g). A second key Hague IV provision relevant to environmental protection is article 55. It provides that a belligerent occupying enemy territory ‘‘shall be 282

For a pre-Gulf War argument along these lines, see Best 1988. Hague IV, supra note 130, article 23(e). 284 This contention is not universally accepted. One commentator has argued by reference to the French text that article 23(e) ‘‘suffering’’ includes ‘‘property damage, environmental damage, or damage to anything.’’ Leibler 1992, at 100. This is an accurate characterization if the damage causes direct human suffering. However, an extension to property or environmental damage per se is not supportable. At any rate, such damage would likely be prohibited under article 23(g). 285 Hague IV, supra note 130, article 23(g). 286 See 2 Department of the Army, International Law 174 (pamphlet No. 27-161-2, 1962) [hereinafter ARP 27-161-2]; Pictet 1958, at 301. 287 Treaty law may, of course, apply with different force than does customary law. As the ICJ has noted, ‘‘even if a treaty norm and a customary norm… were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability.’’ Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4, 84 (June 27). 288 See Leibler 1992, at 106 (citing U.N. War Crimes Commission, Case No. 7150469 (1948)). 283

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regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. [The occupier] must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.’’289 As an usufructuary, the occupying power has the right to enjoy public property, including the right reasonably to exploit it for its natural resources. However, it may not permanently alter or destroy the property. By its own terms, the article does not become effective until open hostilities have ended in an area and a state of occupation has been declared, and it is limited to abuse or destruction of the four categories delineated. If hostilities in the area recommence, then Hague protection reverts to article 23(g) military necessity. Note should also be taken of the Martens Clause found in the preamble to each of the Hague Conventions. Given the novelty of environmental considerations in warfare, it could prove to be a key protection afforded by Hague IV: Until a more complete code of laws has been issued, the high Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the laws of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience.290

A Martens Clause is also found in Protocol I291 and, as discussed earlier, generally is considered to be a principle of customary international law. The major benefit of such a principle is that it operates during the evolution of prescriptive norms. As the law proper grapples with how to handle environmental issues, the ‘‘laws of humanity’’ and the ‘‘dictates of public conscience’’ theoretically will ensure a modicum of protection. Of course, the problem is that it is often difficult to extract specific prohibitions from ‘‘moral law and public opinion.’’ As has been noted, for example, saturation bombing of cities and the practice of ‘‘dumping’’ bomb loads prior to returning to base during World War II ‘‘left the public conscience relatively undisturbed.’’292 Much of the difficulty in determining whether a Martens situation has presented itself will result from the surfacing of crosscultural and intersocietal differences. There will certainly be differences of perception as to the content of ‘‘the laws of humanity’’ and ‘‘file dictates of public conscience.’’ Nonetheless, the provision at least offers a final line of defense to those facing legalistic explanations of why the traditional law of war does not apply in a particular situation. How useful is Hague IV in limiting environmental damage during warfare? In the view of some, very much so. One distinguished commentator argued in 1992, for example, that had the Hague IV principles ‘‘been observed by Iraq, there would

289 290 291 292

Hague lV, supra note 130, article 55. Id. pmbl. Protocol I, supra note 8, article 1, para 2. See ARP 27-161-2, supra note 286, at 15.

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have been no significant violation of the Kuwaiti environment.’’293 Similarly, the DOD Report on the Gulf War stated that the oil spills and sabotage of the oil wells were violations of article 23.294 While probably accurate, such characterizations are fact-specific; they fail to demonstrate that the Hague IV prescriptions are sufficiently comprehensive or that they can be applied successfully in other scenarios. What if an amphibious operation actually had been imminent when the oil was spilled? What if the Iraqis merely had opened the valves on the oil wells and then set the pools ablaze as the DOD report noted they had not? Possibly more revealing still, what if the opponent had not been as universally ostracized as Saddam Hussein? Finally, what would have been the international reaction to the environmental destruction if the victim had been Israel or Iran instead of Kuwait? While it is certainly correct that Hague IV provides significant protection to the environment, these hypotheticals aptly illustrate potential fault lines.295

8.3.3.2 Geneva Convention IV ‘‘Geneva law’’ is that component of the law of war, often labeled ‘‘humanitarian law,’’ that protects certain categories of individuals and objects. Whereas Hague law governs what methods and means are appropriate in warfare, Geneva law delineates against what and whom those methods can be used. Thus, the two bodies of law are complementary. There is a long line of Geneva Conventions stretching back to 1864. Today, the four 1949 Geneva Conventions are the most universally recognized instruments in the law of armed conflict and are considered to have become in great part customary international law. For the purposes of this study, the most relevant is Geneva Convention IV, which governs the protection of civilians and civilian objects in war.296 With regard to environmental destruction, article 53 is the highlight of Geneva Convention IV. It provides that ‘‘[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is 293

Terry 1992, at 63; see also Bothe 1992, p. 104 (asserting that Iraqi actions violated unnecessary suffering provision of article 23(e)). 294 See DOD Report, supra note 69, at O-22. Note that the Convention contains a general participation clause, i.e., a provision to the effect that the treaty applies only between parties, and then only if all belligerents are parties. See Hague IV, supra note 130, article 2. Iraq was not a party to Hague IV. In 1907 it was still a part of the Ottoman Empire. Twelve years later Iraq became a British mandate, but Great Britain never acceded to Hague IV on its behalf. Therefore, when Iraq gained its independence in 1932 it did not have to acknowledge party status. Of course, the fact that the treaty is recognized as customary international law makes this point somewhat irrelevant. 295 Other Hague IV provisions that might bear on environmental damage in individual cases include the requirement to respect private property, see Hague IV, supra note 130, article 46, and the prohibition of pillage, see id. article 47. 296 Geneva Convention IV, supra note 10.

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prohibited, except where such destruction is rendered absolutely necessary by military operations.’’297 Several characteristics of this prohibition are worthy of comment. First, though many objects are granted protection, it is limited, as in article 55 of Hague IV, to occupied territory. Extending protection beyond occupied territories was felt to be unnecessary on the basis that article 23(g) of Hague IV sufficed.298 Of course, also filling in the gap is the customary international law principle of military necessity. Thus, the criticism that has been leveled against the limited scope of article 53 may be valid if the provision is viewed in isolation, but in terms of practical impact during armed conflict, it is inconsequential.299 Although applying only to occupied territories, the provision does offer meaningful protection because environmental damage often occurs in such situations. Historically, this is particularly likely as an occupying force is being ejected. For instance, scorched-earth policies in occupied territory during World War II formed the basis for multiple war crimes prosecutions.300 More recently, much of the environmental damage that occurred in the Gulf War took place as a result of property destruction in occupied Kuwait, most notably destruction of the oil wells. In fact, when the Commission for International Due Process of Law prepared a draft indictment of Saddam Hussein and his key advisers for submission to the U.N. Secretary General, a violation of article 53 was specifically alleged.301 Most scholars and practitioners agree with this characterization of the actions of Iraq,302 a state which had acceded to the Convention in 1956. Article 53 is caveated with the proviso that the prohibition does not apply when destruction is ‘‘rendered absolutely necessary by military operations.’’303 This leads us back into the interpretive maze of the customary law principle’s directness requirement. Although ‘‘absolutely’’ would seem to set a high standard—an extreme on the continuum of necessity, if you will—it is still subject to interpretation. As Jean Pictet has noted in his authoritative ICRC-sponsored commentary on the Convention, ‘‘[i]t is therefore to be feared that bad faith in the

297

Id. article 53. See Pictet 1958, at 301. 299 See Falk 1992, at 78, 88. 300 See, e.g., Hostage (U.S. v. List), 11 T.W.C. 759 (1950) (acquitting general who had ordered destruction during German evacuation of Norway on basis that destruction was necessary due to general’s (mistaken) belief that Russians were pursuing his forces); see also High Command Case (U.S. v. Von Leeb), 11 T.W.C. 462 (1950) (involving destruction in Soviet Union). 301 See Kutner and Nanda 1991, p. 93. In specification 10 of charge I, the Iraqis were charged with having ‘‘destroyed the real and personal property of protected persons and the State of Kuwait; this destruction was not absolutely necessary to military operations and occurred for the most part after military operations had ceased.’’ Id. 302 See, e.g., DOD Report, supra note 69, at O-22; McNeill 1993, at 80; Roberts 1996, manuscript at 39. Additionally, Professor Roberts and Mr. McNeill would concur with Michael Bothe that the actions constituted grave breaches under article 147. See Bothe 1992, at 104. 303 Geneva Convention IV, supra note 10, article 53. 298

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application of the reservation may render the proposed safeguards valueless, for unscrupulous recourse to the clause concerning military necessity would allow the Occupying Power to circumvent the prohibition set forth in the Convention.’’304 To address this weakness, he urges occupying powers to interpret the provision reasonably and with a ‘‘sense of proportion in comparing the military advantages to be gained with the damage done.’’305 The catch-22 is that those states likely to follow Pictet’s admonition are the ones that least need to be deterred from ‘‘unscrupulous recourse to the clause.’’ At the same time, an unscrupulous belligerent is most likely to take advantage of the additional uncertainty that environmental concerns bring to necessity calculations. Despite the difficulty in interpretation and application, one positive note is that article 147 of the Convention includes as grave breaches ‘‘extensive destruction… of property, not justified by military necessity and carried out unlawfully and wantonly.’’306 As a result, a violation of article 53 is a grave breach whenever the destruction involved is ‘‘extensive.’’ Characterization as a grave breach is crucial because parties to the Convention are required to pass domestic legislation providing for the punishment of those who commit or order grave breaches.307 More significantly, a party is obligated to search for offenders and to bring them before its courts, regardless of their nationalities.308 Offenders may also, consistent with extradition agreements, be turned over to other states for prosecution.309 Therefore, while the prescription itself admits of imprecision, the sanctions mechanism should operate to heighten deterrence. Sadly, the Gulf War illustrated that it may not always have this effect, assuming that the DOD Report’s characterization of the Iraqi actions as violations of articles 53 and 147 is accurate as a matter of law.310 Finally, some additional indirect protection for the environment is found in article 147’s inclusion of ‘‘willful killing [and] willfully causing great suffering or serious injury to body or health’’ in the universe of grave breaches.311 Although this applies only to ‘‘protected persons’’ under the convention, i.e., those who are ‘‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals,’’312 there are certainly many situations involving environmental damage that could have these results. The acts do have to be willful, an intent requirement that appears to exclude purely collateral injuries.313

304 305 306 307 308 309 310 311 312 313

Pictet 1958, at 302. Id. Geneva Convention IV, supra note 10, article 147. See id. article 146. See id. See id. See DOD Report, supra note 69, at O-22. Geneva Convention IV, supra note 10, article 147. Id. article 4. See Pictet 1958, at 597.

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Have the relevant Geneva Convention IV principles become recognized as customary international law in the fashion of their Hague counterparts? While there is no international judicial decision on point, the extensive dissemination of the principles through teaching, scholarship, and publication in law of war manuals would suggest they have been. Indeed, no law of war class or manual would be complete without a discussion of Geneva Convention IV. All significant players in the international arena are parties to this Convention, and state practice demonstrates a consensus that the norms expressed are obligatory. The fact that Geneva Convention IV exists as a treaty does not preclude it from evolving over time into customary law, despite the concerns that some have expressed.314 As a result, the normative Geneva prescriptions discussed above are almost certainly binding on parties and nonparties alike.315

8.3.3.3 Protocol I In 1965 the 20th Conference of the Red Cross directed the ICRC to begin work on proposals for updating the law of war. This was in great part a response to an emerging belief that the nature of warfare had begun to experience a qualitative transformation that merited revision of the prescriptive norms governing its conduct. Accordingly, the ICRC convened the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. The Conference, which met over four sessions between 1974 and 1977, was attended by representatives of well over 100 nations and 50 intergovernmental or nongovernmental organizations. Additionally, eleven national liberation movements sent observers. In 1977 this conference adopted two ‘‘Protocols Additional’’ to the Geneva Conventions of 1949. Protocol I addressed international

314

The reasoning behind such concerns is as follows: The large number of nations which accept the Geneva Conventions, rather than evidencing a development of well-accepted custom, may actually obscure the degree to which the treaties have become customary law. As parties to the treaties, nations may be simply following their conventional obligations rather than forging new customary practices. Because of this possibility, the Geneva Conventions paradoxically may remain conventional law rather than having evolved into customary law. Presumably, customs cannot develop when widely subscribed to conventions already exist.

Caggiano 1993, 493 (footnotes omitted). However, recall that the International Military Tribunal found Hague IV to be customary law, see supra note 280, even though by its own terms, it is limited in application to parties, see Hague IV, supra note 130, article 2. I doubt whether there is an inverse relationship between accession to a treaty and the customary character of its provisions. See Meron 1987. 315 See Vienna Convention, supra note 193, article 38 (‘‘Nothing… precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.’’); see also North Sea Continental Shelf (F.R.G. v. Den.) (F.R.G. v. Neth.), 1969 I.C.J. 4 (Feb. 20).

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armed conflict. It is a particularly interesting product in that it combines elements of both Hague and Geneva law. The other, Protocol II, was designed to protect victims of noninternational armed conflict; it will not be discussed here. The United States signed the protocols in 1978, and some 6 years later the Joint Chiefs of Staff were directed to develop a final position on ratification.316 Their conclusions, in which the Office of the Secretary of Defense and the Department of State concurred, recommended against ratification of Protocol I, and President Reagan accepted that advice, calling the Protocol ‘‘fundamentally and irreconcilably flawed,’’317 a position which is under review by officials of the current administration. Despite its rejection of the treaty, the United States does acknowledge that much of Protocol I is customary law and, therefore, binding on its armed forces.318 This position has important implications for applicability of the treaty. For example, if the position is accurate, the customary provisions were applicable during the Gulf War, even though at the time the United States, France, the United Kingdom, and Iraq were nonparties.319 The bulk of the relevant prescriptions found in the Protocol safeguard the environment ‘‘indirectly,’’ either through anthropocentrically based protections or through the extension of traditional concepts designed for purposes other than environmental protection.320 However, Protocol I was the first instrument intended exclusively for armed conflict to provide direct environmental protection. The idea of doing so initially surfaced at the Conference of Government Experts in 1972.321 This ICRC-sponsored body was tasked with laying the groundwork for the effort to update the law of armed conflict. Interestingly, despite a suggestion that the environment per se be granted protection, the preliminary ICRC draft did not contain any provisions expressly addressing the topic.322 After several of the delegations pressed the issue, an informal working group, known as ‘‘Biotope,’’ was established within Conference Committee III to consider proposals for 316 See Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 Am. J. Int’l L. 910, 916 (1987) [hereinafter Agora]. 317 Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts, S. Treaty Doc. No. 2, 100th Congo (1987), reprinted in Agora, supra note 316, at 911. 318 See International and Operations Law Div., Office of the Judge Advocate Gen., Dep’t of the Air Force, Operations Law Deployment Deskbook tab 12 [hereinafter Deployment Deskbook] (summarizing Protocol I and stating U.S. position on key articles). 319 The interesting question is whether all the parties can agree on which provisions are customary. For an analysis of the Protocol as customary law in the Gulf War, see Greenwood 1993. 320 See ICRC Commentary, supra note 17, at 661. 321 The proposal submitted by the experts of Czechoslovakia, the German Democratic Republic, and Hungary read: ‘‘It is forbidden to use weapons, projectiles or other means and methods which upset the balance of the natural living and environmental conditions.’’ International Comm. of the Red Cross 1972, p. 51. The proposal submitted by the experts of Poland forbade the use of ‘‘methods and means which destroy the natural human environment.’’ Id. at 52. 322 See ICRC Commentary, supra note 17, para 2129, at 662.

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environmental provisions.323 The working group recommended two types of articles. First, it recommended articles that tended to treat the environment anthropocentrically—that is, as meriting protection because environmental damage can lead to human suffering.324 Efforts in this direction led to the adoption of article 55.325 On the other hand, some members, recalling the environmental destruction of the Vietnam War, urged adoption of a standard unqualified by the human factor—an intrinsic value approach.326 This led to adoption of the article 35(3) restriction on means and methods of warfare that damage the environment.327 Articles 35(3) and 55 represented the furthest steps toward safeguarding the environment in any international law instrument. The two provisions are complementary: The former is basically a Hague law variant (limits on methods and means of warfare), while the latter is a Geneva law protection (protection of civilians and civilian objects). To foster this relationship, they employ analogous standards.328 As mentioned earlier, inclusion of both provisions was in part an effort to respond equally to the anthropocentric and intrinsic value camps.329 Note the absence in article 35(3) of any connection to, or balancing with, human values. This is particularly interesting because it is an ‘‘intrinsic value plus’’ standard. Basic intrinsic valuation requires assessing more than human worth; it does not preclude balancing environmental and human values once the weighing process is complete. Article 35(3), however, operates independently of human variables. In contrast, article 55(1) focuses on the damage’s ‘‘prejudice [to] the health or survival of the population,’’ a classically anthropocentric formulation.330 The express 323 See id., para 2130, at 663; 15 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 220 [hereinafter O.R.]. 324 See 15 O.R., supra note 323, at 358–359. 325 See 14 id. at 405–406. 326 See 15 id. at 358–359. 327 See 14 id. at 404. 328 See supra text accompanying notes 48–49 (Quoting articles 35(3) and 55). 329 Inclusion of both raised a few hackles. The United Kingdom, for example, went on record disapproving inclusion of article 35(3) in this section, and interpreted it as a mere repetition of article 55. It is particularly important that the United Kingdom viewed the provisions as protecting the environment in order to protect civilians living in it. See 6 O.R., supra note 323, at 118. 330 See Protocol I, supra note 8, article 55, para 1. For purposes of clarity, it should be noted that article 55 falls under part IV, chapter III, entitled ‘‘Civilian Objects.’’ Therefore, it does not protect military objectives. In contrast, there is no such structural limitation with regard to article 35(3). Additionally, note that article 55 refers to the ‘‘population’’ without the adjective ‘‘civilian.’’ The official record makes clear that this omission was intentional—the goal was to extend the protection to the whole population, since the damage was to be long-term. See 15 O.R., supra note 323, at 360. Finally, ‘‘health’’ is used in the provision to provide protection beyond that needed for bare survival. Effects that would pose a serious blow to health—such as congenital defects or deformities—would, therefore, be encompassed within the meaning of the provision. See 15 id. at 281.

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Biotope rationale for retaining the two approaches was that whereas article 55 provides for the protection of the civilian population, article 35(3) is an unnecessary suffering standard. That may explain the methods/means v. civilian population distinction, but it does not explain the absence of reference either to humans or to balancing. In fact, the ICRC commentary on the issue is fairly clear. It states that article 35(3) is a matter not only of protecting the natural environment against the use of weapons or techniques deliberately directed against it, nor merely of protecting the population and the combatants of the countries at war against any of these effects, but also one of protecting the natural environment itself.331

If article 35(3) is about unnecessary suffering, then that suffering extends beyond humans to the ‘‘suffering’’ of the environment. Most opposition to these provisions has centered on the definition of ‘‘widespread, long-term, and severe.’’ Use of the conjunctive ‘‘and’’ is particularly problematic, for so interpreted the articles mandate a three-part test which is nearly impossible to meet except in the most egregious cases. Unfortunately, there is very little indication in the negotiating history of what the delegates intended by the phrase. Some referred to ‘‘long-term’’ as a period measured in decades.332 In fact, other than a passing mention that the battlefield damage in France during the First World War was not of the type contemplated,333 little emanated from the conferences to clarify matters.334 This lack of clarity is one basis for the objections of the United States and other countries.335 Attempts have been made to remedy this flaw, though they have not been international in scope. For instance, the German law of war manual defines the quantum of damage necessary as ‘‘a major interference with human life or natural resources which considerably exceeds the battlefield damage to be regularly expected in a war.336 Surprisingly, some of the best guidance has come from the military of the key state that has not ratified Protocol I—the United States. In its Operational Law Handbook, the Army Judge Advocate General School asserts that ‘‘long-standing’’ should be understood as decades; ‘‘widespread’’ probably means ‘‘several hundred square kilometers… [and] ‘severe’ can be explained by Article 55’s reference to any act that ‘prejudices the health or survival of the

331

ICRC Commentary, supra note 17, para 1441, at 410. See 15 O.R., supra note 323, at 268. 333 See id. at 269. 334 According to the ICRC Commentary, ‘‘[i]t appeared to be a widely shared assumption that battlefield damage incidental to conventional warfare would not normally be proscribed by this provision.’’ ICRC Commentary, supra note 17, para 1454, at 417 (citations omitted). 335 See Roberts and Guelff 1982, pp. 461–463 (reporting reservations to Protocol). 336 German Manual, supra note 168, para 403. However, note that this definition complements a provision in the manual that was developed from both Protocol I and ENMOD. 332

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population.’’’337 The ‘‘widespread’’ definition is taken from ENMOD. This is an interesting approach given the fact that an Understanding was appended to ENMOD disclaiming any intention for its definitions to apply to other instruments—an unstated but obvious reference to Protocol I. From the perspective of the overall development of the environmental law of war, the Army’s reference to human ‘‘health and survival’’ is more important. To use this standard in setting an article 35(3) threshold is to come down firmly in the anthropocentric camp, thereby neglecting the drafters’ rationale for including two distinct environmental provisions. Articles 35(3) and 55 present other interpretive challenges. Some commentators are concerned that the ‘‘may be expected’’ language creates a subjective ‘‘should have known’’ standard that will be used to judge commanders.338 If that is so, they argue, war crimes charges could be based on incidental environmental damage caused in the course of otherwise valid military operations.339 These concerns are overstated. The ‘‘expected’’ verbiage is obviously designed to preclude any argument that since collateral damage is not ‘‘intended,’’ it is not encompassed in the prohibition. Is not that as it should be? A prohibition on excessive collateral damage is hardly novel in the law of war. More to the point, the commentators are entirely accurate—commanders could be made subject to a ‘‘should have known standard.’’ But that is the standard of criminal responsibility imposed in the domestic law of many states. Under the Uniform Code of Military Justice, for instance, commanders are already held criminally responsible for operational consequences about which they should have known.340 Lack of actual knowledge is a mitigating factor, not a defense based on the absence of an element of the offense. What should be of far greater concern to the operational commander than definitional legerdemain or questionable scienter standards is that the provisions are devoid of reference to military necessity or proportionality. Any action taken by a commander that reaches the ‘‘long-term, widespread, and severe’’ threshold

337 Operational Law Handbook, supra note 179, at 5–8. According to the handbook, most of the damage that occurred during World War II would not have met this threshold. See id. 338 In fact, that appears to have been the intent. The ICRC Commentary explains that the English text originally read ‘‘calculated to cause,’’ whereas the French text used the phrase ‘‘de nature à.’’ The English iteration suggested that the mental state required was one of intent or deliberation, whereas the French was more restrictive. Therefore, the Conference discarded the ‘‘calculated to cause’’ phraseology, replacing it with ‘‘intended, or may be expected.’’ See ICRC Commentary, supra note 17, para 1458, at 418. 339 See Roberts 1985, at 146–148. He argues that the ‘‘standards set forth in articles 35(3) and 55 are too ambiguous and subject to diverging interpretation to be workable. They could conceivably make military commanders and political leaders subject to prosecution for committing war crimes if they ‘should have known’ their actions would result in proscribed damage to the environment.’’ Id. at 148. This assertion confuses possibly valid criticism of substantive legal standards with issues of mens rea. 340 See Joint Serv. Comm. on Military Justice, Manual for Courts-Martial, United States, § 16a(3)(b) (pt. IV 1995). The explanation to article 92 of the code indicates that dereliction of duty may be charged using this standard: ‘‘[a]ctual knowledge need not be shown if the individual reasonably should have known of the duties.’’ Id., § 16c(3)(b).

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will violate the prescriptions even if it is militarily necessary and clearly proportional. No balancing occurs beyond this point. Especially troubling is the possibility that there may be human values, military advantages aside, that outweigh the environmental protection being afforded.341 Imagine, for instance, a large population center at risk of falling to enemy forces operating from forested terrain surrounding it. The forest effectively serves as a sanctuary for the attackers. To complicate matters, prior instances of occupation by the enemy have revealed a callous, wanton occupier with little regard for the civilian population. The only option available to the defending commander is to destroy the forest surrounding the city, but the sole method available for doing so quickly will result in long-term, widespread, and severe destruction of the forest’s flora and fauna. On the other hand, denial of sanctuary will force the enemy to withdraw. Under article 35(3), the commander seemingly would be precluded from taking the action despite the potential for tragic human suffering should the enemy occupy the city. Yet absent article 35(3), the commander’s proposed course of action would clearly meet the requirements of military necessity and proportionality. That is one side of the coin, namely, whether the articles raise the standard of protection too high by excluding from the process important considerations that safeguard human values. On the other side is the debate about whether the standard of protection is lowered by the articles. Professor Wil Verwey has argued that it very well might, by pointing to the general principle of law that lex specialis applies over lex generalis. According to this argument, an action that does not cause widespread, long-term, or severe damage will not be prohibited because it is otherwise disproportionate or causes unnecessary suffering.342 The better view, however, is that neither provision has such an effect. First, the lex specialis principle applies in situations in which norms appear to conflict. It is a principle of resolution. Here it can be argued that proportionality and unnecessary suffering are complemented by the Protocol provisions and vice versa; they are each designed to further humanitarian concerns.343 Much more importantly, the inclusion of environment-specific prescriptions was not intended to forgo protection already in place. Nor did the Diplomatic Conference use articles 35(3) and 55 merely to clarify existing norms, a fact illustrated by the differing perspectives reflected in the two. Instead, the purpose was obvious—to enhance protection of the environment. Arguments to the contrary ignore the historical, political, and social milieu from which Protocol I emerged, as well as the principle of international law

341 The issue is not an ‘‘either-or’’ proposition—it is a question of balance. Even intrinsic value advocates would agree that environmental values can be outweighed by human ones. The precise balance depends on the circumstances. 342 See Verwey 1995b, manuscript at 2. 343 Bear in mind that proportionality and unnecessary suffering are principles of law, not war.

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that treaties are to be interpreted in accordance with their context, object, and purpose.344 Another interpretive challenge is determining what to make of the ‘‘care shall be taken’’ language in the first sentence of article 55. No such exhortation appears in article 35(3). Though reference to ‘‘taking care’’ might at first glance appear to set a low standard, article 55 continues by prohibiting methods or means that would result in the requisite damage. Thus, the phrase is actually a hortatory provision that encourages greater protection of the environment than the minimum standard set forth in the next sentence. This makes particular sense in the context of an anthropocentrically based article: One should always strive to improve the protection of humans from the dangers of war. Perhaps, then, the provision is intended to address situations involving methods or means not designed to damage the environment.345 By this interpretation, the care standard is a collateral damage provision. Alternatively, it might be simply hortatory, and merit no formal prescriptive valance beyond that.346 In a sense, these articles, particularly article 35(3), are analogous to the ‘‘just don’t do that’’ prohibitions discussed in conjunction with the humanity principle.347 Here we see the flip side of the benefits provided by such prohibitions. While they may obviate the necessity of engaging in complex balancing analysis, in certain unique circumstances they may also operate to bypass human values that could be fostered by the prohibited actions. Of course, any appraisal of the prescriptions must be based on an analysis of costs and benefits. Do the clear benefits offered by environment-specific provisions outweigh the costs generated, in the unlikely event that actions forbidden by Protocol I foster human values? The answer depends, as it did with the customary international law balancing tests, on the relative assessment of human and environmental values. This returns us to the anthropocentric v. intrinsic value debate. In the search for the meaning of the prescriptions, a distracting twist is the assertion that the use of nuclear weapons might be prohibited by the Protocol. After all, while no weapon is more destructive, many strategists have argued that the very destructiveness of nuclear weapons is what provides the greatest protection to human values—a protection that takes the form of deterrence. Concerns have been expressed that if Protocol I were held applicable to nuclear weapons, ‘‘the careful balance fashioned with the other nuclear powers in existing agreements affecting those weapons could be adversely impacted.’’348 However, although the legality of nuclear weapons is a valid topic for discussion in international law circles, the 344

See Vienna Convention, supra note 193, article 31, para 1 (‘‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’’). 345 See Bothe et al. 1982, pp. 345–346. 346 Professor Verwey has observed that the ICRC has never claimed that the care standard of the first sentence was intended to extend the level of protection. See Verwey 1995b, manuscript at 3. 347 See supra Sect. 8.3.2.3. 348 Terry 1992, at 64–65.

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applicability of articles 35(3) and 55 is not. From the very beginning, it was clear that the Protocol provisions were not meant to reach nuclear weapons. When the ICRC first provided draft protocols to the Diplomatic Conference for consideration, it specifically noted that they were not intended to encompass atomic, chemical, or bacteriological weapons because those weapons were already the subject of other international instruments. Later, the United States, France, and the United Kingdom, among other states, reiterated the exclusion of nuclear weapons from the reach of the Protocol provisions. In fact, the only country that appeared to adopt the position that nuclear weapons were covered was India.349 After all is said and done, how much protection do Protocol I’s environmental provisions actually provide? The answer remains clouded, but the best estimate is that it is measurable. For instance, even in advance of the Gulf War, the ICRC Commentary noted that ‘‘[t]here is no doubt that article 55 will apply to the destruction of oil rigs resulting in oil gushing into the sea and leading to extensive damage such as that described in that article.’’350 With impressive foresight, it also addressed the tactic of setting oil facilities ablaze, noting that ‘‘it is hardly necessary to stress the grave danger that may ensue for the civilian population.’’351 Yet some would counter that the standards are ‘‘too broad and too ambiguous for effective use in military operations.’’352 This criticism is basically irrelevant because any action that might rise to the Protocol levels of harm would probably already be precluded by general principles such as proportionality. Still others suggest that the standard is too high to have any real effect.353 The position taken by the DOD’s Gulf War Report falls squarely within the naysayer camp: [T]here were questions as to whether the Iraqi actions would have violated its environmental provisions. During [the] treaty’s negotiation, there was general agreement that one of its criteria for determining whether a violation had taken place (‘‘longterm’’) was measured in decades. It is not clear [whether] the damage Iraq caused, while severe in a layman’s sense of the term, would meet the technical-legal use of the term in Protocol I. The prohibitions on the damage to the environment contained in Protocol I were not intended to prohibit battlefield damage caused by conventional operations and, in all likelihood, would not apply to Iraq’s actions in the Persian Gulf War.354

While it may or may not be accurate to deny that the damage technically reached the Protocol I threshold, it certainly is quite a stretch to suggest that either

349

For discussions of this issue, see Deployment Deskbook, supra note 318, tab 12, para 1.7.1.4; Aldrich 1986, at 718–719; Kalshoven 1978, pp. 108–109. 350 ICRC Commentary, supra note 17, at 668–669. 351 Id. at 669. 352 Matheson 1987, at 436. This contention is insupportable. Imagine a small state facing a large invasion force from the sea. Furthermore, assume that the human rights record of the aggressor force during occupation is dismal. If the small state could foil amphibious operations by dumping oil into the path of the oncoming fleet, would not such an action be both proportionate and militarily necessary even though the damage caused would reach Protocol I levels? 353 See, e.g., Baker 1993, p. 368. 354 DOD Report, supra note 69, at O-27.

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the intentional spilling of nine million barrels of oil into the sea or the setting of over five hundred oil well fires is analogous to ‘‘battlefield damage caused by conventional operations.’’ The ICRC’s Hans-Peter Gasser has succinctly noted that ‘‘[a]s a legal statement this is questionable.’’355 He is quite right. Though the level of damage caused by the Iraqi actions was overestimated, it would appear clear from the commentary that this was precisely the type of action that the drafters had in mind. As noted earlier, the United States has chosen not to ratify Protocol I (though over 130 other states have),356 and has objected specifically to those provisions that are directed to environmental protection. Are they nevertheless declaratory of customary international law? A number of commentators have argued that articles 35(3) and 55 may be.357 The better argument is that while there may be an emergent ‘‘operational code’’ regarding environmental damage during warfare, it is premature to assert that customary law in the classic sense has solidified.358 Lack of international unanimity among the relevant actors, most notably the United States, is ample evidence of this fact. The ICRC also takes the position that articles 35(3) and 55 have not attained the status of customary law,359 which explains its aggressive dissemination efforts, particularly vis-à-vis its new environmental law of war guidelines. While articles 35(3) and 55 are the only environment-specific prescriptions found in Protocol I, many of its other provisions also bear on issues of warfare and the environment. Some simply further codify elements of the law of war that already have been addressed. For instance, article 35(1) notes that the right of the parties to choose methods or means of warfare is not unlimited360; article 35(2) expresses the customary unnecessary suffering prohibition361; article 51 proscribes

355

Gasser 1996 (manuscript at 10 n.4). A current listing of the parties is maintained by the ICRC at the net site (visited Oct. 23, 1996) http://www.icrc.ch/icrcnews. 357 See, e.g., Moore 1992, at 78 (noting that articles 35(3) and 55 ‘‘may be declaratory of a rapidly developing customary international law’’). 358 For a discussion of operational codes and myth systems, see Reisman 1987, pp. 23–25; Reisman and Baker 1992, pp. 23–24. 359 See 1993 Secretary General Report, supra note 140, at 5. 360 See Protocol I, supra note 8, article 35, para 1 (‘‘In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.’’). 361 See id. article 35, para 2 (‘‘It is prohibited to employ weapons, projectiles and Materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’’). 356

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indiscriminate attacks362; and both articles 51363 and 57364 mandate proportionality analysis. General concepts relevant to the environment are implicit in several other provisions. The requirement to distinguish civilian from military objects in articles 48365 and 52,366 for example, is a basic step both in military necessity or proportionality analysis and in assessing discrimination (humanity) requirements. Of course, the Martens Clause of article 1 provides protection even beyond the specific safeguards enunciated in the Protocol.367 However, Protocol I stretches the envelope of environmental protection much further than mere codification of preexisting norms. Under article 54(2), for example, [i]t is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian

362 See id. article 51, para 4. The article states that indiscriminate attacks are prohibited. Indiscriminate attacks are:

(a) (b) (c)

those which are not directed at a specific military objective; those which employ a method or means of combat which cannot be directed at a specific military objective; or those which employ a method or means of combat which cannot be limited as required by this Protocol; and consequently, in each case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Id. 363

See id. article 51, para 5 (‘‘[A]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’’ is one type of indiscriminate attack). 364 See id. article 57, para 2(b) (‘‘[A]n attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’’). 365 See id. article 48 (‘‘In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.’’). 366 See id. article 52, para 2. Article 52(2) provides: ‘‘Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’’ Id. 367 See id. article I, para 2 (‘‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’’).

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population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.368

As the provision’s examples illustrate, in many cases it is the environment itself that provides the objects necessary for survival. It must also be noted that the list is not exhaustive. Other items such as fuel oil, electricity, or lines of communication could, depending on circumstances, also merit protection, as long as the attack on them is for the purpose of denying sustenance. Their destruction (absent the article 54(2) safeguards) certainly could have environmental consequences. Under paragraph (2), protected objects are immune from targeting even if the reason for denying sustenance is to secure a military advantage. This is so regardless of whether the intent is to deny sustenance to the civilian population or to the ‘‘adverse party,’’ i.e., enemy forces. Exceptions arise only when the protected objects are (1) used solely for the armed forces; (2) not used as sustenance, and destruction will not deprive the civilian population of food or water; or (3) required in the defense of, and executed on, one’s own territory.369 This essentially outlaws the scorched-earth tactics used during the Second World War with such tragic consequences for both humans and their environment. Of particular importance is the fact that military necessity has been completely removed from the equation, although the requirement of intent to deny sustenance will limit the reach of article 54(2) somewhat. Finally, the article would preclude use of the environment as a weapon if the prohibited effect might result.370 While article 54(2) has not proven controversial, another provision with significant environmental consequences, article 56, has. It prohibits attacking dams, dikes, and nuclear electrical power generating stations if the release of ‘‘dangerous forces and consequent severe losses among the civilian population’’ might result.371 This clearly anthropocentric prohibition applies even if the facility is a valid military objective. It also includes attacks on any surrounding military objective that might result in the release of dangerous forces. For dams and dikes, the protection is forfeited if they are used for purposes other than their normal functions and ‘‘in regular, significant and direct support of military operations and such attack is the only feasible way to terminate such support.’’372 As to nuclear electrical generating stations, attack is permissible only when the facility provides power ‘‘in regular, significant and direct support of military operations’’ and the 368

See id. article 54, para 2. See id. article 54, paras 3, 5. Anthony Leibler has suggested that since the provision is limited to destruction intended to deny civilians sustenance, and other actions are not treated as prohibited, ‘‘at least from the perspective of environmental protection Article 54 is of negligible utility.’’ Leibler 1992, at 107. On the contrary, article 54 may limit efforts to foment unrest among a population, destroy sustenance available to an advancing force that lives largely off the land, or even foul desalination plants on which both civilians and the military rely. 370 See Protocol I, supra note 8, article 54, para 2. For instance, altering weather or climate could severely affect food production. 371 Protocol I, supra note 8, article 56, para 1. 372 Id. article 56, para 2(a). 369

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only way to cut off that support is through attack.373 Parties are permitted to arm the facilities, though any armament is limited to defensive use and cannot exceed that necessary to repel hostile action.374 Assertions have been made that the article, if given a liberal interpretation, would extend protection to any facility containing ‘‘dangerous forces,’’ in particular oil wells or tanks. These assertions are unconvincing. The question whether the list provided should be exhaustive or illustrative surfaced during the drafting process. It was decided that to permit specificity regarding those facilities about which the drafters were most concerned (dams, dikes, and nuclear power facilities), the list would be exhaustive.375 Despite limitation in scope, the degree of protection is consequential. First, though the term ‘‘severe’’ appears to mandate a high degree of loss before protections come into effect, that is not the case, for in the official ICRC Commentary the term is clarified as meaning ‘‘important’’ or ‘‘heavy.’’376 Conceptually, then, it may be easier to think of the provision as excluding losses that are ‘‘unimportant’’ or ‘‘light.’’ Assuming this is a fair characterization rather than merely semantic gymnastics, the quantum of damage necessary to activate article 56 would not be difficult to reach. Furthermore, an attack need not even be certain to result in a release; instead, the criterion is ‘‘may cause.’’ Whether an attack may result in a release is a much less subjective determination than whether it will do so. The robustness of the protection is also apparent in the hurdles to be overcome before attack is permitted. Dams and dikes must be used for other than their intended purposes and their support of the enemy effort must be regular, significant, and direct and attacking them must be the only option. Nuclear generating stations enjoy similar safeguards, though they need not be used for other than their normal function.377 Notice that virtually all the criteria are stated in the conjunctive. Therefore, even when support is direct and substantial and attack is the only option, if the support is irregular the facility enjoys immunity. The requirement to eliminate feasible alternatives further complicates matters. Once it is determined that there is no other choice, must the weapon that best avoids damage 373

Id. article 56, para 2(b). See id. article 56, para 5. 375 See 15 O.R., supra note 323, para 326. See also Bothe et al. 1982, at 352. The Greenpeace Study’s statement that ‘‘[i]t is unclear whether oil wells constitute installations containing ‘dangerous forces.’ The examples given in Protocol I… are not meant to be exhaustive, and a liberal construction could say that the release of the force of the oil fires and spills is covered,’’ Arkin et al. 1991, at 140, is thus incorrect. 376 ICRC Commentary, supra note 17, para 2154 (‘‘[A]s so often in this chapter, this concept is a matter of common sense and it must be applied in good faith on the basis of objective elements such as proximity of inhabited areas, the density of population, the lie of the land, etc.’’). 377 See Protocol I, supra note 8, article 56, para 2(b). The issue of targeting nuclear facilities was raised at the 1990 Review Conference for the Nuclear Non-Proliferation Treaty. The Hungarian and Dutch delegates, with support from several other delegations, suggested an international agreement to address the topic. The U.S. delegation did not respond to the proposal. See Fischer and Müller 1991, p. 566. 374

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be selected? Normally, the law of armed conflict does not dictate the use of specific tactics, e.g., the use of smart weapons. However, given the heightened protection afforded to these facilities, as well as the requirement to select alternative courses, it would make sense that weapons choice criteria would apply. The Rapporteur acknowledged as much by suggesting that the capabilities of modern weapons heightened the protection afforded under the provision.378 Other indications of stringency are found in the intent underlying the relevant verbiage, intent that may suggest, as was the case with ‘‘severe,’’ a meaning that differs from common usage. Resort to the ICRC Commentary again illustrates the extent of the protection afforded. It offers two examples: a dike forming part of a system of fortifications and a road across a dam that can be used as an essential route for the movement of armed forces. Even in these circumstances, the regular, significant, and direct criteria apply, thereby indicating that there are times when they might not be met.379 The ICRC Commentary then goes on to dismiss criticisms of the standard’s apparent subjectivity by noting that the ‘‘terms merely express common sense, i.e., their meaning is fairly clear to everyone’’; therefore, they simply ‘‘need to be interpreted in good faith on the basis of objective elements.’’380 At this point, it might seem a daunting task to identify examples of support for military operations that would allow exclusion from the broader protection. In fact, it may be easier than it seems at first glance. Lest those who apply the standard not possess the perceptive abilities to discern what is ‘‘fairly clear to everyone,’’ the commentary defines the terms, using the technique of semantic inversion employed above to illustrate ‘‘severe.’’ ‘‘Regular’’ implies a time standard and is said not to be ‘‘accidental or sporadic.’’ ‘‘Significant,’’ according to the commentary, is less precise than regular, but implies support that is more than ‘‘negligible’’ or ‘‘merely an incidental circumstance.’’ ‘‘Direct’’ means ‘‘not in an intermediate or roundabout way.’’381 These definitions actually appear to set a lower standard of protection than would result from reference to common American usage of the terms. The United States opposes article 56 as excessively restrictive, pointing to the protections already provided to the civilian population by the principle of proportionality. From the U.S. perspective, setting the threshold for attack so high invites the enemy to use protected facilities for military purposes. If the attacker decides that the criteria are not met, he will refrain from attack. On the other hand, if he decides that the criteria have been met, he opens himself up to condemnation by those who would disagree with his assessment. Given the multiplicity of criteria and their inherent subjectivity, it would be very difficult to cite an action that would be objectively permissible. Finally, critics argue that the protection for

378 379 380 381

See 15 O.R., supra note 323, at 284. See ICRC Commentary, supra note 17, para 2162, at 671. Id. Id.

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nuclear electrical power generation facilities ignores the existence of integrated power grids, an argument contradicted by the ICRC Commentary.382 Advocates of the prohibition would reply by pointing to the requirement that the resultant losses among the civilian population be ‘‘severe.’’383 Therefore, only attacks with dramatic consequences are forbidden. Furthermore, since severity of loss is a prerequisite to protection, in most cases simple proportionality analysis will preclude those attacks that the article’s opponents might complain of being prohibited from conducting. It is hard to imagine an attack with severe civilian losses that would be proportional if its contribution to the enemy’s military effort were not regular, significant, and direct. From this perspective, article 56 essentially operates to resolve gray area situations in favor of the civilian population. There is little doubt that adherence to article 56 would heighten protection of the environment during warfare. Though proportionality analysis would provide similar levels of protection in most cases, article 56’s greater specificity serves as a restraint on self-serving interpretations of proportionality by the malevolent. This does not answer the question whether Protocol I is worthy of ratification, or even whether article 56 is an overall step forward in the law of war. Yet because it is less susceptible to avoidance through interpretation, from an environmental perspective it represents progress. As a final aside, it bears mentioning that U.S. aircraft attacked nuclear facilities during the Gulf War. However, article 56 was not applicable because the United States was not a Protocol I party and because it would be difficult to make a case that the provision represented customary international law. Furthermore, the targets were not nuclear electrical generating stations. Some may argue about whether the attacks ‘‘may’’ have resulted in a release, or even whether the United States took all ‘‘practical precautions’’ to avoid causing one, but ultimately the missions did not implicate Protocol I.384 Like Geneva Convention IV, Protocol I provides for grave breaches. Neither of the environmental provisions to be discussed in greater detail below, articles 35(3) and 55, is included in the category. Nevertheless, the causation of environmental damage could, under specific circumstances, constitute a grave breach (war crime) if the act in question were willful and death or serious bodily injury would result. These include making the civilian population the object of attack, launching an indiscriminate attack against civilians or civilian objects, and striking works or installations containing dangerous forces knowing that the harm caused will be excessive.385 In such cases, damage to the environment may be collateral or the environment might be attacked for the purpose of causing the requisite result. 382

See Deployment Deskbook, supra note 318, tab 12, para 1.8.7.1; ICRC Commentary, supra note 17, paras 2164–2166, at 671–672. 383 Ambassador Aldrich, who negotiated Protocol I for the U.S., provides the core analysis supporting ratification. See Aldrich 1986, at 714–716. 384 See Goldblat 1991, pp. 400–401. Professor Goldblat takes a fairly critical approach to the topic, using as an example the 1981 bombing of the Iraqi nuclear reactor by the Israelis. 385 See Protocol I, supra note 8, article 85, para 3(a)–(c).

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As war crimes constituting grave breaches, such acts would require the state in which the offender is found to prosecute him or cooperate in his extradition.386 The mere fact that an offense is not a grave breach, however, does not preclude prosecution; it only means that the heightened enforcement regime set forth for grave breaches does not apply. Finally, one notable limitation of the Protocol is that its articles regarding protection of the civilian population and civilian objects (articles 48–67) are not generally applicable to naval warfare or aerial combat.387 What is interesting is that this restriction affects all of the significant provisions relevant to the environment that will be discussed except article 35(3). This is due to the placement of article 35(3) in an earlier section on methods and means of warfare. As a result, the scope of article 35(3) will be broader than that of its counterpart, article 55, even though their text is nearly identical. This is especially significant in light of the fact that the former adopts an intrinsic value approach,388 whereas the latter is anthropocentric in nature.

386 387

See id. article 88. See id. article 49, para 3. Article 49(3) provides: The provisions of this section [Civilian Population] apply to any land, air, or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.

Id. The exclusion resulted from a conscious effort by the delegates of the Diplomatic Conference to secure agreement where it was most likely to come—in the ‘‘well-established’’ body of law governing land warfare. Their concern was that naval warfare had fundamentally changed, thereby becoming unsettled, during and after the Second World War. In particular, differences of opinion over the state of the law governing issues such as visit and search, the legality of attacks on merchant vessels, and submarine warfare were felt likely to impede the process of updating the existing Geneva Conventions. See Bothe et al. 1982, at 290; ICRC Commentary, supra note 17, at 606. The Bothe commentary notes that this approach was ICRC-proposed and had the support of the states with the largest navies. These parties believed it would be counterproductive to pursue revision of the law of naval warfare at the time, particularly as the preparatory work of the experts had not focused on the subject. See Bothe et al. 1982, at 290. Similarly, the laws of aerial warfare are not formally codified, and the customary law that addresses the topic is ambiguous. Therefore, the delegates decided to make Protocol I inapplicable at sea or in the air unless the attack in question targeted land objectives. See Protocol I, supra note 8, article 49, para 3. It has been suggested that one additional exception is the extension of applicability to attacks from the sea or air against targets in the territorial sea. See Walker 1996, manuscript at 122. This reasonable approach is based on the Protocol’s use of ‘‘territory’’ and ‘‘national territory,’’ terms which in their legal context include the territorial sea. 388 See supra notes 323–331 and accompanying text.

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8.3.3.4 ENMOD The final core prescriptive instrument relevant to the environment in the jus in bello is ENMOD. Negotiated contemporaneously with Protocol I and ratified by the United States in 1980, it was in part a reaction to the environmental modification techniques practiced during the Vietnam War, such as attempts to alter weather.389 Though the Soviet Union was the first to propose a limitation on environmental modification, the United States quickly became a prime mover behind the Convention.390 In fact, the United States already had renounced the use of climate modification techniques in 1972 as a matter of policy.391 As of April 1996, there were 64 parties to the Convention, including most major states (e.g., the United States, Russia, Germany, and Japan). Countries that have signed but not ratified it include Iraq, Iran, and Syria, whereas two significant holdouts are France and China.392 ENMOD is ‘‘Hague Law’’ in that it limits methods and means of warfare. It is not necessary that those methods and means actually affect the environment, for the only prohibition is on use of the environment as a weapon.393 Article I provides: (1) Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party. (2) Each State Party to this Convention undertakes not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this article.394 389 See Hearings to Hear Testimony on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Before the Senate Comm. on Foreign Relations, 96th Congo (1979); Environmental Modification Treaty: Hearings on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Before the Senate Comm. on Foreign Relations, 95th Cong. (1978). 390 See Schindler and Toman 1988, at 163. In 1974 the Soviet Union submitted a draft convention to the General Assembly, which in turn referred it to the Conference of the Committee on Disarmament. At that point the United States and the Soviet Union provided the Conference with identical drafts of a proposed convention. The text was revised in committee and submitted to the General Assembly, which approved it on December 10, 1976. The Convention was then opened for signature. It entered into force on October 5, 1978. See id. 391 See Terry 1992, at 64. Also recall the sense of the Senate Resolution. See supra notes 32–33 and accompanying text. 392 A list of current parties is maintained at net site: http://www.un.org/Depts/Treaty. Note that a state that has signed but not ratified a convention is obligated not to take actions contrary to the object and purpose of the agreement, at least until it has made clear its intent not to become a party. See Vienna Convention, supra note 193, article 18. 393 This distinction motivated the name change in the Jordanian Note Verbale. See supra notes 115–116 and accompanying text. 394 ENMOD, supra note 34, article 1.

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Though the ‘‘widespread, long-lasting or severe’’ formula resembles that found in Protocol I, here it is stated in the alternative, using ‘‘or.’’ Since a technique meeting any of the threshold criteria will be prohibited, the result is a much more stringent standard of protection than that found in Protocol I. An effort was made during the ENMOD drafting process to clarify terminology. In the Understanding Relating to Article I, ‘‘widespread’’ was defined as ‘‘encompassing an area on the scale of several hundred kilometres’’; ‘‘long-lasting’’ as ‘‘lasting for a period of months, or approximately a season’’; and ‘‘severe’’ as ‘‘involving serious or significant disruption or harm to human life, natural and economic resources or other assets.’’395 Again, this constitutes a higher standard than that found in Protocol I, particularly when comparing the definition of ‘‘longlasting’’ as seasonal with the commonly accepted understanding of the Protocol I limit as being measured in decades. Similarly, describing ‘‘severe’’ as ‘‘serious or significant’’ also serves to heighten protection, as does the use of ‘‘disruption’’ instead of ‘‘damage’’ in setting forth the requisite violative effect. This attempt to define the core verbiage of the prescription was not universally accepted, though the vast majority of the parties have effectively accepted it by not filing reservations (interpretive statements) related to the definitional issues.396 One source of confusion may be differences in opinion regarding whether to use individual or cumulative effect in assessing the damage. This is an important issue in the Protocol I context as well. For instance, the United States has reportedly stated that the use of herbicides to modify the environment would not be forbidden unless the end result of an individual use were widespread, long-lasting, or severe destruction.397 As one commentator notes, ‘‘[i]t follows that, as the consequences of an individual mission would probably fall below these thresholds, such missions would not be prohibited, despite the fact that overall the damage would clearly fall well outside allowed limits.’’398 This assertion is certainly incorrect in the context of current understandings. Consider the most vivid example of environmental damage during hostilities in recent times, the intentional Gulf War oil spills. Virtually no one asserted that each Iraqi spill should be considered individually in assessing legality. On the contrary, commentators were unanimous in citing the releases as a single operation despite 395

Understanding Relating to Article I, Report of the Conference of the Committee on Disarmament, U.N.GAOR, 31st Sess., Supp. No. 27, at 91–92, U.N. Doc. A/31/27 (1976), reprinted in Schindler and Toman 1988, at 168. There were four Understandings which, though not part of the Convention, were included in the report transmitted by the Conference of the Committee on Disarmament to the United Nations General Assembly. 396 Turkey, however, filed an interpretive understanding stating that in its opinion the ‘‘terms ‘widespread,’ ‘long-lasting’ and ‘severe effects’… need to be clarified. So long as this clarification is not made the Government of Turkey will be compelled to interpret itself the terms in question and consequently it reserves the right to do so as and when required.’’ Turkish Interpretive Statement Filed at Time of Signature, May 18, 1977, reprinted in Multilateral Treaties Deposited with the Secretary General (visited Oct. 23, 1996) http://www.un.org/Depts/Treaty. 397 See Goldblat 1984, 55. 398 Carruthers 1993, at 47.

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the fact that the spills were separated in time and executed in differing ways (release from oil terminals, ships, etc.). Though this example is not an ENMOD scenario, it illustrates the international community’s attitude towards severability. What it did distinguish were the spills from the fires. The best approach acknowledges, on the one hand, the inappropriateness of simply lumping all wartime environmental damage together to determine whether the article I thresholds are met. This is so if only because an actor is unlikely to have been able to anticipate reasonably what the net results of his many environmentally destructive actions would be; it would be difficult to demonstrate even a ‘‘should have known,’’ let alone a ‘‘knew,’’ level of scienter. On the other hand, it would be even more absurd to excuse conduct because the ultimate damage resulted from multiple actions, such as aerial flights, none of which alone caused the requisite level of destruction. Instead, it should be asked whether the actions are part of a single integrated plan or operation designed to achieve a common, or closely related, result. By using an intent element as the connective variable, scienter problems (at least those involving scope of the relationship) are rendered de minimis. Definitional issues also pervade article II’s use of the phrase ‘‘environmental modification technique’’ as ‘‘any technique for changing—through deliberate manipulation of natural processes—the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.’’399 Illustrative examples cited in the Understanding relating to article 11 include earthquakes, tsunamis, an upset in the ecological balance of a region, changes in weather patterns, changes in climate patterns, changes in the state of the ozone layer, and changes in the state of the ionosphere.400 The Understanding indicates that while these are only examples, their use would create the presumption of a violation.

399

ENMOD, supra note 34, article II. See Understanding Relating to Article II, Report of the Conference of the Committee on Disarmament, U.N. GAOR, 31st Sess., Supp. No. 27, at 91–92, U.N. Doc. A/31/27 (1976), reprinted in Schindler and Toman 1988, at 168. The Understanding reads as follows: 400

It is further understood that all the phenomena listed above, when produced by military or any other hostile use of environmental modification techniques, would result, or could reasonably be expected to result, in widespread, longlasting or severe destruction, damage or injury. Thus, military or any other hostile use of environmental modification techniques as defined in article II, so as to cause those phenomena as a means of destruction, damage or injury to another State Party, would be prohibited. It is recognized, moreover, that the list of examples set out above is not exhaustive. Other phenomena which could result from the use of environmental modification techniques as defined in article II could also be appropriately included. The absence of such phenomena from the list does not in any way imply that the undertaking contained in article I would not be applicable to those phenomena, provided the criteria set out in that article were met. Id.

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What stands out in the definition is its limitation to techniques that involve manipulation of natural processes. There is relative consensus, for instance, that the techniques employed by Iraq during the Gulf War did not implicate ENMOD prohibitions, and would not have done so even had Iraq been a party.401 While the environment may have been the target, it was not the weapon. Therefore, despite a very restrictive standard, the narrow range of techniques contemplated in ENMOD suggests that, given current technologies, the Convention will be of limited value. Probably its greatest impact will be directional, by foreclosing weapons development along the prohibited lines. The future effectiveness of ENMOD may be further limited by its enforcement regime. It is a regime based exclusively on state responsibility, possibly because the greater part of the Convention is focused on peacetime activities. The result is an essentially political system for assuring compliance.402 In situations preliminary to armed conflict, or in armed conflict itself, the primary remedy is referral to the Security Council for enforcement action. However, the Security Council already is empowered under the Charter to take appropriate actions in response to most potential breaches of ENMOD; the Convention’s enforcement provisions add little new power. Further limiting the enforcement regime’s effectiveness is the fact that the Convention’s scope is limited to damage caused to parties.403 How should ENMOD be assessed overall?404 Most importantly, ENMOD affects only a very narrow band of possible operations, many of which have not advanced beyond the concept stage.405 Furthermore, it has not attained the wide acceptance that Protocol I enjoys, a particularly unfortunate state of affairs given its limitation to the territory of parties. Finally, ENMOD is another example of an absolute prohibition in that no military necessity or proportionality balancing is required prior to its taking effect. This poses the same risk discussed with regard to Protocol I—that human values might suffer for environmental ends. Of course, the fact that the requisite damage need not be to the environment of another party suggests that the prohibition is framed in essentially anthropocentric terms. 401 The DOD report cited with approval the conclusions of the Ottawa Conference on this point. See DOD Report, supra note 69, at O-26 to O-27. However, the Commission for International Due Process of Law, in its draft indictment of Saddam Hussein and his advisers, did allege an ENMOD violation. See Kutner and Nanda 1991, at 95. 402 See ENMOD, supra note 34, article v. 403 See id. article I, para 1 (‘‘Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.’’) (emphasis added). 404 The ENMOD Convention provided for review conferences to assess the provisions and compliance therewith. See ENMOD, supra note 34, article VIII. Neither the first conference in 1984 nor the second in 1992 was able to arrive at a consensus on anything significant. The second, however, did reaffirm the need to conduct further reviews. See Fleck 1993. 405 One such concept involves melting the Arctic ice cover in order to raise the level of the sea and thereby flood coastal areas. See Blix 1984, p. 709.

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To some extent, this will mitigate the danger of not factoring in proportionality and necessity. Whether the gains represented by ENMOD merit this risk is a fair matter for debate. Regardless of the answer, ENMOD is finding its way into the documents that underlie development of the operational code—law of war manuals.406

8.3.3.5 Miscellaneous Prescriptions Though the four conventions addressed above represent the core environmental prescriptions in the jus in bello, others also contain provisions that enhance protection of the environment during hostilities. Among the most important are the 1925 Gas Protocol,407 the 1993 Chemical Weapons Convention,408 and the United Nations Conventional Weapons Convention.409 It is instructive to mention each briefly.410 The United States ratified the first of these, the 1925 Gas Protocol, in 1972. The Protocol prohibits the use of ‘‘asphyxiating, poisonous, or other gases, and of analogous liquids, materials, and devices.’’411 Extending to both chemical and biological agents, the treaty is widely held to be declaratory of customary international law. In terms of environmental protection, the prohibitions are significant, especially in light of the fact that chemicals can be transferred through the food chain. Unfortunately, there is significant controversy over the scope of the Convention, a point that should be obvious from the half-century that it took the United States to become a party. Even when it did ratify, the United States included a firstuse reservation—a statement that it would not be bound by the prohibitions if the other side in a conflict violated the agreement first.412 Executive Order 11,850 implements the agreement with respect to the wartime use of chemical herbicides and riot control agents.413 Setting forth U.S. policy, it retains the option of

406

See, e.g., German Manual, supra note 168, para 403 (distinguishing Protocol I from ENMOD damage). 407 Gas Protocol, supra note 132. 408 Chemical Weapons Convention, supra note 135. 409 Conventional Weapons Convention, supra note 134. 410 Three other conventions cited in the 1993 Secretary General Report that also have some marginal environmental effect are the Biological Weapons Convention, supra note 133; the Convention for the Protection of Cultural Property, supra note 153; and the Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 1037 U.N.T.S. 151. 411 Gas Protocol, supra note 132, pmbl. 412 The ‘‘Protocol shall cease to be binding on the government of the United States with respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or devices, in regard to an enemy State if such State or any of its allies fails to respect the prohibitions laid down in the Protocol.’’ Reservation Made on Ratification, reprinted in Schindler and Toman 1988, at 126. 413 See Exec. Order No. 11,850, 40 Fed. Reg. 16,187 (1975).

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retaliation, but renounces the use of herbicides. Executive Order 11,850 goes on to cite explicitly two circumstances in which the use of herbicides is authorized even absent formal authorization—domestic employment and use to clear vegetation around the ‘‘immediate defensive perimeter’’ surrounding U.S. bases.414 Other states also have adopted first-use reservations,415 thereby creating two distinct treaty regimes. The exclusion of herbicides, however, is not widespread; a number of close allies have interpreted the prohibition as extending to all gases.416 In fact, during the Vietnam War, the U.N. General Assembly issued a resolution in response to U.S. use of herbicides that purported to clarify the scope of the Protocol. The resolution stated that the Protocol prohibited use of: (a) [a]ny chemical agents of warfare-chemical substances, whether gaseous, liquid or solid—which might be employed because of their direct toxic effect on man, animals or plants; (b) [a]ny biological agents of warfare-living organisms, whatever their nature, or infective material derived from them—which are intended to cause disease or death in man, animals, or plants, and which depend for their effect on their ability to multiply in the person, animal or plant attacked.417 Nevertheless, the issue of scope remains alive today, with lack of unanimity continuing to weaken the overall regime.418 A related convention is the Chemical Weapons Convention of 1993. The war between Iran and Iraq, in a fashion reminiscent of the First World War, drew attention to the horrors of chemical weapons when they were used both during military campaigns and against the Iraqi Kurds. As a result of these tragedies, the Conference on the Prohibition of Chemical Weapons adopted the Declaration on the Prohibition of Chemical Weapons in January 1989.419 Signatories of the 414

See id. These include France, Iraq, Israel, Libya, the former Soviet Union, and the United Kingdom. For the text of the reservations, see Schindler & Toman 1988, at 121–127. 416 Reisman and Antoniou 1994, p. 58. 417 G.A. Res. 2603, U.N. GAOR, 24th Sess., Supp. No. 30, at 16, U.N. Doc. A/7630 (1969). 418 For example, Professor Verwey has noted: 415

The better view appears to be… that this Protocol was never intended to protect the environment, and that even the employment of herbicides and defoliant agents of the types used during the Vietnam War would only be prohibited to the extent that they can be proven to be toxic to human beings and to actually cause human casualties. Verwey 1995b, manuscript at 5. On the other hand, Professor Goldblat states that the Protocol ‘‘is widely interpreted as applying not only to humans and animals, but also to plants. This is now recognized also by the United States, which made extensive use of herbicides during the war in Vietnam.’’ Goldblat 1991, at 403. In fact, most states do see the Protocol as extending to plants, and though the United States does not, it has renounced the use of herbicides as a matter of policy except in certain circumstances. See supra notes 413–414 and accompanying text. 419 Final Declaration of the Conference of the States Parties to the 1925 Geneva Protocol and Other Interested States on the Prohibition of Chemical Weapons, Jan. 11, 1989, 28 I.L.M. 1020.

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Declaration condemned the states that had employed chemical weapons and renounced their use. They also reaffirmed their commitment to the 1925 Gas Protocol prohibitions and urged nonparties to accede to the agreement.420 Concerted efforts to secure a robust chemical weapons convention followed the Conference. Those efforts came to fruition in 1993. As of April 1996, the Chemical Weapons Convention has 160 signatories, including the United States. Of the 160 signatories, 49 have become parties.421 It was transmitted to the Senate for ratification in November 1993. The treaty remains open for signature and will come into force in accordance with its terms 180 days after deposit of the 65th instrument of ratification.422 Under the Convention, parties bind themselves not to use, under any circumstances, chemical weapons, or to ‘‘develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone.’’423 The preamble emphasizes that this prohibition is complementary to, not in lieu of, the 1925 Gas Protocol.424 It also addresses several issues that have generated controversy regarding the latter agreement. For instance, it rules out retaliation with chemicals and, by characterizing them as such, settles much of the debate over whether herbicides are chemicals.425 An important feature of the Convention is its description of its prohibitions in terms of means or methods of warfare.426 This raises the question whether use in situations such as in extremis hostage rescue or riot control during civil affairs operations is permissible. The position of the Army is that the Convention is inapplicable in MOOTW because they are operations ‘‘conducted for peaceful purposes and do not constitute armed conflict.’’427 Lest this position be

420

See id. See Multilateral Treaties Deposited with the Secretary General (visited Oct. 23, 1996) http://www.un.org/Depts/Treaty. 422 See Chemical Weapons Convention, supra note 135, article XXI. For an excellent summary of the Convention, as well as the history leading up to its completion, see The Chemical Weapons Convention (visited Oct. 23, 1996) http://www.opcw.nl/guide.htm. 423 Chemical Weapons Convention, supra note 135, article I, para 1(a). The Convention is not subject to reservation. See id. article XXII. 424 See id. pmbl. 425 See id. article II, para 2. The Convention defines ‘‘toxic chemical’’ as any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere. Id. 426 For example, in setting forth uses of chemicals that are not prohibited, the Convention includes ‘‘[m]ilitary purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare.’’ Id. article n, para 9(c). 427 Operational Law Handbook, supra note 179, at 5-5. 421

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characterized as an excessively liberal interpretation, it must be remembered that Executive Order 11,850 restrictions remain intact during MOOTW.428 The last of the three agreements is the United Nations Conventional Weapons Convention. Like Protocol I and ENMOD, this agreement specifically addresses the environment, but does so in a slightly different fashion. Protocol I discusses use of weapons, but not weapons themselves. ENMOD also fails to discuss weapons themselves, for it is concerned with the use of the environment as a weapon through the manipulation of natural processes. The Conventional Weapons Convention begins to fill the gap by focusing on specific conventional weapons, some of which are capable of harming the environment. The agreement begins somewhat controversially. After reiterating the customary international law principle of humanity,429 it restates the provisions of article 35(3) of Protocol I.430 This led France and the United States to attach reservations (the United States referred to its reservations as understandings) to their instruments of ratification indicating that the preamble applies only to Protocol I parties.431 Issues of applicability aside, the heart of the Convention is found in three attached protocols.432 The first, which addresses nondetectable fragments, is not applicable to this study and will not be addressed.433 Protocol II covers

428 While the Army’s approach makes sense, where does its outer limit lie? For instance, would Saddam Hussein’s actions against Iraqi Kurds be covered? That would depend on whether the operations were characterized as ‘‘armed conflict.’’ The best interpretation is that use is forbidden in situations amounting either to international (Protocol I) or noninternational (Protocol II) ‘‘armed conflict.’’ See supra note 10 (distinguishing between international and noninternational armed conflict). 429 See Conventional Weapons Convention, supra note 134, pmbl. (‘‘Basing themselves on the principle of international law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, and on the principle that prohibits the employment in armed conflicts of weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering …’’). 430 See id. (‘‘Also recalling that it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment …’’). 431 The understandings and reservations appear at Multilateral Treaties Deposited with the Secretary General, supra note 421. The U.S. Understanding is as follows: ‘‘The United States considers that the fourth paragraph of the preamble to the convention, which refers to the substance of the provisos of article 35(3) and article 55(1) of Additional Protocol I to the Geneva Conventions for the Protection of War Victims of August 12, 1949, applies only to States which have accepted those provisions.’’ Id. 432 Addition of a fourth protocol on blinding lasers was approved by the October 1995 Review Conference. See Additional Protocol on Blinding Laser Weapons (Protocol IV) to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 12, 1995, U.N. Doc. CCW/CONF.I/7 (1995). 433 See Protocol on Non-Detectable Fragments (Protocol I), Conventional Weapons Convention, supra note 134.

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mines, booby traps, and similar devices.434 While mines would be unlikely to cause extensive damage to the environment, they certainly could harm humans and animals, and render areas of land unusable. Protocol II provides environmental protection in two ways. First, a proportionality standard balances damage to civilian objects against direct military advantage.435 The Protocol then imposes humanity-based standards by forbidding indiscriminate use, requiring mine locations to be recorded, and permitting the remote delivery of only self-neutralizing mines.436 These are classic anthropocentric provisions providing indirect environmental protection. Direct protection of the environment is found in article 2(4) of the agreement on incendiary weapons, Protocol III, which provides that ‘‘[i]t is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.’’437 The United States has elected not to ratify this Protocol, although its objections are broadly based on the overall utility of incendiaries in situations in which an enemy is dug in well, rather than on the Protocol’s environmental protection component. There is little question that article 2(4) would enhance environmental protection, for incendiary weapons, like forest fires, can have devastating environmental impact.438 Animal and plant life is destroyed and habitats often are irreparably damaged by fire and smoke. At the same time, though, the article allows for necessity by excluding the three most likely military uses of such areas; it acts as a toggle switch for the protections provided. Of course, once the prohibition is ‘‘turned off,’’ proportionality analysis is still necessary to determine if the target is indeed legitimate. Issues of the overall utility of incendiary weapons aside, this general approach may serve as a useful model for future environmental prescriptions. Absolute 434

See Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), Conventional Weapons Convention, supra note 134. 435 See id. article 3, para 3(c) (prohibiting states from placing weapons ‘‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’’). 436 See id. articles 3, 5, 7. 437 Protocol III, supra note 134, article 2, para 4. 438 In 1973, the Secretary General of the United Nations noted that [a]lthough there is a lack of knowledge of the effects of widespread fire in these circumstances, such attempts may lead to irreversible ecological changes having grave longterm consequences out of all proportion to the effects originally sought. This menace, though largely unpredictable in its gravity, is reason for expressing alarm concerning the massive employment of incendiaries against the rural environment. United Nations Dep’t of Political and Sec. Council Affairs, Napalm and Other Incendiary Weapons and All Aspects of Their Possible Use, U.N. Doc. A/8803/Rev.l, U.N. Sales No. E.73.1.3 (1973).

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prohibitions, such as that in article 35(3), risk the possibility of actually increasing the harm caused by not accounting for proportionality or military necessity. On the other hand, simply to cite the principles is to create an exception that swallows the rule. Protocol III mitigates these problems by outlining the actions to which a response is militarily necessary,439 thereby opening the door for a subsequent proportionality analysis. Admittedly, any time applicable scenarios are catalogued in law of war instruments, some either slip through the cracks or surface later as warfare evolves. However, it is preferable to address them supplementally than to craft a prescription devoid of substantive effect. Therefore, albeit limited in scope, Protocol III’s environmental provision does offer a workable means for protecting one aspect of the environment, and contains the seeds for future environmental law of war efforts.

8.3.4 Responsibility Under the Jus in Bello Wartime responsibility is a relatively well settled topic. Generally, a wrong committed during wartime results in liability for consequences arising therefrom. Payment of reparations is the usual remedy. The basic principle was expressed more than half a century ago by the Permanent Court of International Justice in the well known case of The Factory at Chorzów.440 There, the court held that ‘‘reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.’’441 The compensation requirement, including compensation for all wrongful ‘‘acts committed by persons forming part of a Party State’s armed forces,’’ also is found in Hague IV and Protocol I.442 ENMOD contains no liability provision.443 Interestingly, under Hague IV and Protocol I, responsibility lies for acts by a state’s ‘‘organs’’—including members of its armed forces—even if those acts are ultra vires.444 This is not the case under general principles of international law, such as those set forth in the International Law Commission’s Draft Articles of State Responsibility. Thus, on the one hand, Hague IV and Protocol I would appear to establish a higher standard of responsibility for violations of their rules than would otherwise be the case. On the other hand, one might argue that the two instruments merely codify what has become a generally accepted principle of state responsibility during armed conflict. This determination is difficult to make

439

See Protocol III, supra note 134, article 2, para 4. Factory at Chorzów (Genu. v. Pol.), 1928 P.C.I.1. (ser. A) No. 17 (Sept. 13). 441 Id. at 47. 442 See Hague IV, supra note 130, article 3; Protocol I, supra note 8, article 91. 443 See ENMOD, supra note 34. 444 See Greenwood 1996, manuscript at 5 (citing decision of arbitral tribunal in United StatesMexican Mixed Claims Commission, Youmans, 4 R.I.A.A. 110 (1926). 440

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because of international law’s limited experience with reparations. Consequently, as Professor Christopher Greenwood has noted, ‘‘[o]n the whole…State responsibility has not proved a particularly effective means of enforcing the law.’’445 Even if reparations were widely imposed, it is unlikely that they would be an effective deterrent to environmental destruction. States that resort to armed force are unlikely to decide to forgo an act because of the pecuniary risk, for the risk only becomes a reality if the state suffers a military defeat. The desire to avoid possible defeat would certainly outweigh any deterrent effect generated by the possibility that the loser might have to make reparations. After all, in the vast majority of cases, the likelihood of defeat will exceed the likelihood of having to pay reparations; states sometimes lose without having to pay reparations, but they almost never make reparations without having lost. This is certain to remain the case, at least until the emergence of a supranational authority with true adjudicative and enforcement powers sufficient to compel a wrongdoing victor to pay. What the logic demonstrates is that two purposes, retribution and restitution— punishing wrongdoers and making victims whole—are at the core of reparations. If deterrence were the goal, then the imposition of reparations would have to make wrongdoers believe that their misdeeds almost certainly would result in punishment. Reparations, however, are too infrequent to induce this belief. In contrast, both restitution and retribution are more easily balanced by competing interests (e.g., post-hostilities political stability) because they are not generally intended to alter the violator’s behavior. Instead, they are victim focused. It is not the intent here to downplay the role of state responsibility, or the reparations that flow therefrom. That retribution is a valid aim of punishment in the international arena, much as it is in domestic judicial systems, can be argued convincingly. More importantly, reparations contribute to the rebuilding of a global community that has been harmed by a breach of its norms. This perspective makes particular sense in the environmental context because restoration is a costly proposition. The Gulf War is an excellent case in point. In October 1990, the Security Council passed Resolution 674, which stated that ‘‘under international law [Iraq] is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq.’’446 This was followed in March by Resolution 686, which insisted that Iraq ‘‘accept in principle its liability under international law for any loss, damage, or injury’’ that resulted from its occupation of Kuwait.447 As the Gulf War drew to a close, Resolution 687, the ceasefire resolution passed by the Security Council, plainly stated that Iraq was responsible for the damage caused by its invasion and occupation of Kuwait and called for the establishment of a body to handle claims against Iraq from a

445

Id. at 8. S.C. Res. 674, U.N. SCOR, 45th Sess., 2951st mtg. para 8, U.N. Doc. S/RES/674 (1990), reprinted in 29 I.L.M. 1561, 1563. 447 S.C. Res. 686, U.N. SCOR, 46th Sess., 2978th mtg. para 2(b), U.N. Doc. S/RES/686 (1991), reprinted in 30 I.L.M. 568, 569. 446

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fund capitalized by a levy on Iraqi oil exports.448 The United Nations Compensation Commission was established by Resolution 692 and is currently involved in the process of receiving claims.449 The only money in the fund, however, consists of contributions by several states drawn primarily from frozen Iraqi assets. By basing liability on Iraq’s invasion and illegal occupation of Kuwait rather than an on environment-specific prescription, the Security Council neatly sidestepped the issue of responsibility for violation of the environmental law of war. Specifically, the basis of liability was a violation of article 2(4) of the U.N. Charter, a wrongful resort to force under the jus ad bellum. This facilitates the making of claims because framing them in this fashion avoids various technical legal issues involving party status, interpretation of treaty text, the content of customary international law, etc. Essentially, the inquiry is reduced to two issues of fact: causation and damage. Environmental damage is merely one of many forms of compensable damage.450 This approach casts the net of liability much more broadly than would have been the case if damages for environmental damage

448

See S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg. paras 16–19, U.N. Doc. S/RES/687 (1991), reprinted in 30 I.L.M. 847, 852. 449 See S.C. Res. 692, U.N. SCOR, 46th Sess., 2987th mtg., U.N. Doc. S/RES/692 (1991), reprinted in 30 I.L.M. 864. On the work of the Commission, see Bettauer 1995; Crook 1993; Fox 1993, at 261; Harper 1996 (manuscript at 7–9). The current deadline for claims submission is February 1, 1997. See Compensation Commission, Governing Council Decision No. 12, U.N. Doc. S/AC.26/1992/12. The State Department ultimately expects approximately 200 billion dollars in claims to be filed. See Harper 1996, manuscript at 7. 450 Included within the damage for which Iraq is responsible is that caused as a result of Coalition operations. This approach is premised on the theory that ‘‘but for’’ Iraq’s wrongful acts, Coalition operations would never have occurred. The relevant provision provides: This [responsibility] will include any loss suffered as a result of: (a) Military operations or threat of military action by either side during the period 2 August 1990 to 2 March 1991… [and] (c) Actions by officials, employees or agents of the Government of Iraq or its controlled entities during that period in connection with the invasion or occupation. Compensation Commission, Governing Council Decision No. 7, para 34, U.N. Doc. S/AC.26/ 1991/7IRev. 1, reprinted in United Nations, the United Nations and the Iraq–Kuwait Conflict, 1990–1996, at 429, 429 (1996). The actual damage for which the Iraqis will pay includes: direct environmental damage and the depletion of natural resources as a result of Iraq’s, unlawful invasion and occupation of Kuwait. This will include losses or expenses resulting from: (a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources. Id.

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had been based on the law of armed conflict’s environmental provisions. The disadvantage of this approach is that an opportunity to clarify the substantive law may have been missed. Finally, mention should be made of individual responsibility. There is little doubt that environmental damage during armed conflict can form the basis for criminal culpability under the laws of war. In addition, the ILC’s Draft Code of Crimes Against the Peace and Security of Mankind provides for trial of ‘‘an individual who willfully causes or orders the causing of widespread, long-term and severe damage to the natural environment.’’451 This applies during both peace and war but, as indicated in the text, is limited to intentional acts (as opposed to negligent or reckless acts): Though the Draft Code is nonbinding, it certainly enhances the argument that individual responsibility should lie in cases of environmental destruction. In the Gulf War, however, there was no attempt to impose individual responsibility on Iraqi war criminals. The U.S. Army’s War Crimes Documentation Center, given the task of assessing Iraqi actions and gathering evidence of violations, specifically found that individual war crimes had been committed.452 In its final report, the Center characterized the Iraqis as having violated both article 23(g) of Hague IV and article 147 of Geneva Convention IV, even though it described the rationale behind the Iraqi destructive acts as ‘‘unclear.’’453 Noting that criminal responsibility rests with the commander when he orders, permits, or fails to stop offenses of which he knew or should have known, the report was unambiguous when referring to Saddam Hussein: The evidence collected during this investigation establishes a prima facie case that the violations of the law of war committed against Kuwaiti civilians and property, and against third party nationals, were so widespread and methodical that they could not have occurred without the authority or knowledge of Saddam Hussein. They are war crimes for which Saddam Hussein, officials of the Ba’ath Party, and his subordinates bear responsibility. However, principal responsibility rests with Saddam Hussein.454

Submitted to the President of the Security Council in March 1993, the report was subsequently circulated throughout the United Nations.455 Why were no charges ever brought if the evidence was so clear? The reasons are primarily practical, not legal. First, it would have been nearly impossible to 451

Draft Code of Crimes Against the Peace and Security of Mankind, article 26, in Report of the International Law Commission on the Work of Its 43d Session, U.N. GAOR, 46th Sess., U.N. Doc. A/46/405, reprinted in 30 I.L.M. 1563, 1593 (1991). 452 See War Crimes Documentation CTR., Office of the Judge Advocate Gen., U.S. Army, Report on Iraqi War Crimes (Desert Shield/Desert Storm) 45–48 (1992) (unclassified version on file at Naval War College Library, Newport, Rhode Island). 453 See id. at 10–11. 454 Id. at 13. 455 See Letter Dated 19 March 1993 from the Deputy Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/25441 (1993).

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bring Saddam Hussein and his cohorts to trial. As a result, any proceedings would have to have been held in absentia. Furthermore, the possibility of individual criminal punishment would have made it difficult to negotiate war termination with the Iraqis. Those likely to face criminal proceedings were still in firm control of the country and would not have agreed to truce terms that included their arrest. Finally, the political context at the time was important. That a coalition with membership ranging from Syria to Canada held together at all is surprising. Since the attitude toward legal proceedings varied widely, particularly in the Arab world, convening trials in this postwar environment, which was laden with politics and emotion, might well have ruptured the fragile relations that had been forged. War aims had been deliberately delimited to make possible the coalition’s creation. To bring Saddam Hussein to trial would have represented a clear expansion beyond those aims. Did the absence of trials negatively affect the law of war? In the view of the State Department’s Legal Adviser, Conrad Harper, trials would have been untimely: Whether the international community will one day elect to bring to bear the force of criminal sanctions against those who perpetrate gross and unjustified environmental damage in warfare remains to be seen. In my view, we have not yet arrived at the point where the international community is willing to put its credibility, commitment, and the full force of its conscience behind environmental crimes prosecutions in much the same way that it has demanded accountability in the context of Rwanda and Bosnia.456

If his assessment is correct, and there is no reason to believe it is not, then trials would actually have been a step backward; they would have revealed divisiveness within the international legal community over what the prescriptions actually are. While this might have been a useful exercise from a pedagogical perspective, the environmental protection regime would have been weakened by highlighting the legal fault lines in a politically charged matter.

8.4 Where to from Here? 8.4.1 Appraising the Present Law By now, there should be little question that the prevailing assessment of the environmental law of war is that it is adequate. In response to those who would argue the contrary by pointing to Iraqi actions in the Gulf, adequacy advocates urge that the problem is enforcement, not law. If only Iraq had complied with the existing law of war, all would have been well. They cite the nearly unanimous condemnation of Saddam Hussein’s actions as evidence of universal acceptance of the relevant prescriptive norms. 456

Harper 1996, manuscript at 10.

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This school of thought may perhaps reflect a bit of goal orientation. Guided by our justifiable indignation over Hussein’s appalling actions, we wanted him to be guilty of war crimes. As members of a predominantly positivist legal culture, we also wanted to be able to point to specific provisions of international law that had been violated. Thus, we looked to the classic workhorses of the law of war— customary law, Hague law, and Geneva law—and predictably found what we needed. Having embraced this position, logically we have to attribute shortcomings in the application of the environmental law of war to something else. Usually one of two culprits is cited, poor enforcement mechanisms or failure to understand what the prescriptions ‘‘really mean.’’ Based on the analysis set forth above, this position proves less than convincing. The existing environmental law of war neither adequately echoes community values nor serves to foster its aspirations. This body of law poses numerous obstacles to effective legal deterrence of environmental damage during armed conflict, obstacles that have been described at length. They may be grouped into several broadly expressed failings. First and foremost, if law is to serve the aspirations of the global community, it must be of practical application. Unfortunately, the lack of environmental specificity forces us to fall back upon traditional law of war principles such as necessity and proportionality, even when applying treaty law provisions. These customary prescriptions employ continuums and balancing tests, the manipulation of which is rendered more complex by the inclusion of environmental concerns. Additionally, consider the plethora of uncertainties that stand in the way of practical and consistent application. Is peacetime environmental law applicable in armed conflict? Is the environment a separate value category? If so, should it be measured in an anthropocentric or inherent value context? What weight should be accorded to environmental values? How far should chains of causation stretch? How should the great uncertainty of environmental impact be handled? These and other issues raised throughout this chapter are difficult to contemplate in the sterile environment of academia, let alone in the fog of wartime friction. This would be so even in a monocultural context; to expect consistent results across cultures is ambitious, to say the least. The second problem is that of definitions. Environment-specific treaty law employs the terms ‘‘widespread,’’ ‘‘long-term,’’ and ‘‘severe’’ in its key provisions. Since these appear to have become the agreed-upon terms of art to be used, one would imagine that they would enjoy a common understanding. However, their meaning has been variously interpreted, for instance, by the U.S. Army, the German Government, the drafters of Protocol I, and ENMOD signatories. This variation complicates application of the environmental law of war. Finally, the law that does serve to protect the environment lacks internal coherence. Each facet was developed in response to very different problems, in varying contexts, and at different times. No effort has been made to reconcile its various components, or to seek the protective synergism that complementary

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humanitarian law offers.457 In some cases, most notably the definitional quandary just mentioned, this lack of coherence operates to weaken existing prescriptions by muddying the waters. What remains is a body of law that offers only haphazard protection to the environment, protection characterized by significant gaps. That the law proper presents problems is clear. But what about the direction in which it is headed? At the outset of this chapter, the directional nature of law was highlighted. Is the law on course? Is it moving towards enhancement of world order, or are the trends that have been identified ultimately counterproductive? While the general vector of the environmental law of armed conflict is correct, it risks going too far. It is absolutely essential that the environment be considered qua environment, not simply as yet another civilian object. This is so because of the unique characteristics that the environment exhibits. In particular, warfare affects nonbelligerents environmentally, either in their own territory or in the global commons. To diminish the water quality of a river, for example, is to harm all of the riparian states, not simply the target state. To spew pollutants into the atmosphere is to render damage elsewhere dependent on the whims of the wind. Environmental damage is often difficult to circumscribe, regardless of the intent of the actor. The qualitative distinction between environmental and more traditional damage is also demonstrated by the difference in the scope of reverberating effects. Traditional warfare is replete with instances of reverberation, some intentional, some not. Scholars and practitioners may quibble about the severity and proportionality of bombing electrical targets during the Gulf War, for example, but no one would suggest either that its consequences were limited to destruction of the target, or that reverberations were irrelevant to proportionality calculations. Even so, the environment is different, for its very essence is interconnectedness. While it is true that warfare may cause harm beyond the direct application of force, it is difficult for acts of war not to cause such harm to the environment. Moreover, in nonenvironmental damage; the chain of reverberation is usually much shorter; a building is blown up, only to be rebuilt or have its occupants or function move elsewhere. The impact of environmental damage, in contrast, often will play out through many iterations; an effect on one species influences many, a phenomenon which, in turn, repeats itself at each higher level. It is much more pervasive than the traditional damage to which we are accustomed in armed conflict. Not only is the impact more likely to be cast broadly, but it is also more likely to prove irreversible. There is no way, for example, to recreate a species that has been destroyed. If that species constitutes the primary food source for others, the reverberating effect will be no less harmful to them. The same is true of the many natural resources on which life, human or otherwise, relies. Some means of warfare may have mutagenic effects, and, unfortunately, science is incapable of returning genetic structures to their original states. Finally, and perhaps most

457

As was the intent, for example, in the drafting of Protocol I vis-a-vis the Geneva Convention of 1949. See supra Sect. 8.3.3.3.

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importantly, many species that have suffered harm, including humans, can survive if provided sufficient time, space, and resources to do so. Destruction or contamination of an area, however, denies all species both space and resources. Thus, unlike most other damage in warfare, environmental devastation truly may represent crossing the Rubicon of survival. There is little doubt that the law has moved, albeit slowly and in a very limited way, toward recognizing the uniqueness of the environment and its need for special protection. This is apparent in Protocol I and ENMOD’s environmentspecific provisions, the first such provisions in conventions dealing with armed conflict. It is also evident in the various peacetime instruments that have come into effect over the past several decades and in hortatory and aspirational language found in various nonbinding sources, such as the Stockholm and Rio Declarations. Indeed, even though the Security Council resolutions demanding compensation from Iraq were based on nonenvironmentally related jus ad bellum grounds, the environment was specifically singled out, in and of itself, as a damaged entity generating Iraqi liability. There is every indication that the law is moving in the right direction. The problem is that it is moving too far. What law is, and how it operates, really depends on the cognitive prism through which it (and the context in which it will be applied) is viewed. These prisms can be thought of as placed along a continuum. Until Vietnam, the environment was not seen as having any independent existence, a view representing one extreme of the continuum. Following that conflict, the environment began to be recognized as a distinct entity, albeit primarily in anthropocentric terms. Conceptually, anthropocentrism is not a point on the continuum, but rather an area along it within which there are varying degrees and styles of the perspective. For instance, article 55 of Protocol I is framed in terms of ‘‘health or survival,’’ whereas the Rio Declaration placed great weight on the interests of developing states. At the limit of anthropocentric environmentalism are those who would weight the environment using measures such as its aesthetic contribution, or perhaps even the sense of placement in the greater scheme of things that it offers humanity. Yet in all of these cases, the human variable is a factor. One may disagree with the precise value that is posited, but at least all valuations are operating from within the same broad context. The problem is that some would move beyond the limits of anthropocentrism into valuation based on intrinsic worth. An excellent example of this approach is found in Professor Verwey’s thoughtful work. A pioneer in identifying the perspectives that have been developed in this chapter, Professor Verwey argues for ‘‘common recognition’’ of three principles: 1. the indivisibility of a healthy environment as an indispensable condition for the survival of present and future human generations; 2. the necessity to disconnect the legal protection of the environment in times of armed conflict from its anthropocentric legal enclosure; [and]

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3. the need to expand the protective scope of the relevant rules beyond the current level of merely prohibiting known or expectable and directly demonstrable environmental damage.458 Devotion to the first principle is shared by many anthropocentrics; after all, it is couched in anthropocentric terms. Similarly, the third is a principle of causation more likely to be embraced by intrinsic value advocates, but not exclusively by them. After all, one might want to prohibit environmental damage that ‘‘may’’459 occur because if it does it will affect humans negatively. In contrast, the second principle, at least as stated,460 is classic intrinsic valuation. It essentially urges protection of the environment regardless of what it does for humanity. This does not mean that the contribution that the environment makes to humans will be ignored, but that the value of the environment in and of itself will also be considered. Although it is absolutely clear that anthropocentric approaches of one sort or the other dominate thinking about the impact of war on the environment, there are indications that the law is moving in the intrinsic value direction. The fact that it proved necessary to satisfy both camps by including two environmental provisions in Protocol I demonstrates the degree of support for the approach. Other examples of the degree of support for intrinsic valuation include the menu of options in the proposal offered at the London Conference by Professor Plant, as well as the general tenor of recommendations by organizations such as Greenpeace.461 This trend has troubling implications. First, it is one thing to recognize that the environment per se must be protected, and quite another to urge that the environment should be evaluated apart from anthropocentric considerations. In the former case, the uniqueness of the environment is recognized, but the processes of valuation remain relatively intact. Though valuation is more complex when the environment is factored in, anthropocentric valuation not only provides a familiar frame of reference, but it also keeps balancing tests two-dimensional. In purely intrinsic value analysis, in contrast, process and substance are thrown askew. As illustrated in the discussion of customary international law principles, introduction of a third variable necessitates a three-way balancing test among the environment, human values, and military advantage. Furthermore, if human terms are not used to value the environment, what standard should be used? The difficulties of

458

Verwey 1995a, at 33. See id. at 38–40. 460 Professor Verwey’s discussion of the principle includes the concept of per se protection. See id. at 36–37. Indeed, he speaks of the possibility of recognizing the environment as the common heritage of mankind, a particularly anthropocentric characterization. The mere fact that the environment is protected per se does not imply that it is not valued for its anthropocentric character. It simply means that it is considered an independent and unique entity. Whether it is valued intrinsically, anthropocentrically, or in both ways is a separate question. 461 See The Gulf War: Environment as a Weapon 1991, at 220–223 (remarks of Sebia Hawkins of Greenpeace International). 459

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cross-cultural anthropocentric value paradigms pale beside those presented by intrinsic valuation. In the end, intrinsic valuation leaves us with an incredibly complex process that defies practical application and encourages divisiveness within the community of those who wish to ensure environmental protection during warfare. Well-meaning efforts to enhance protection by recognizing the intrinsic value of the environment will have exactly the opposite result. The flawed prescriptions currently in place will collapse under the weight of attempts to sort through the approach in practice. There is an even more basic problem with the intrinsic value perspective than determining how to conduct balancing or what weight to attribute to balanced values. Does the international community really want to adopt an approach that would sacrifice human interests to environmental ones? Intrinsic value advocates probably would rush to protest that this is not their intention. But of course it is. Any time one attributes autonomous value to the environment, one risks the possibility that trying to safeguard it will operate at cross purposes with other values. The fact that values conflict is the very raison d’être of balancing tests. Closing territory to military activities may have very real human consequences. Perhaps an attacking force will be forced into an avenue of attack that places the population at greater risk. Maybe environmental restrictions will disallow tactics that would enhance protection of the civilian population. For instance, if smoke that results in extensive collateral damage is the only way to prevent an aerial attack, do we want to deny the tactic to a victimized state with no other means of defending itself? The issue of sacrificing human values presents itself in two guises. The easier of the two occurs when environmental values are added to the balancing process. Can human values be outweighed by the intrinsic value of the environment? Most reasonable commentators would agree that there are times when humans should be placed at risk to protect the environment. By rejecting intrinsic valuation, the framing of this quite logical assertion in an either/or fashion can be avoided. Viewed anthropocentrically, and very broadly so, the question is not when do human values have to be sacrificed, but rather what are the net human values that will be put into the equation. A much more disturbing dilemma arises in attempts to determine when the environment should be protected without considering human values at all, that is, without resorting to a balancing test. This is exactly what article 35(3) does; once the level of damage reaches a certain point, the protection kicks in regardless of countervailing human values. Prescriptions crafted in this fashion are extraordinary in that they reject the premise that there are times when human values outweigh environmental ones. For instance, option (a) of the Plant proposal prohibits methods or means of warfare that are intended to, or may, cause any damage to the environment.462 This is intrinsic value at its extreme. There is no balancing of any sort, only an absolute prohibition. Yet if failure to acknowledge the

462

See supra text accompanying notes 94–95.

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environment in and of itself is objectionable, why is it any less objectionable to ignore the human factor? Are humans not as much an integral part of the global ecosystem as plants, other animals, or nonliving resources? What is it that makes us less worthy of protection than the environment’s other components? Of course, this perspective represents one extreme of the anthropocentric-intrinsic value continuum, and very few responsible individuals who have considered the issue seriously would go so far. Nevertheless, it does constitute a logical and directional conclusion drawn from the premises underlying the intrinsic value approach. It is important not to read too much into these criticisms of intrinsic value. First, they are not meant to imply that the environment lacks intrinsic value. Instead, the comments are only designed to highlight the pitfalls associated with decision making processes and standards that incorporate an intrinsic value component. It is unfortunate that intrinsic value cannot easily be folded into balancing processes without generating inconsistent and divisive results; but that inability is an acceptable cost of maintaining the level of protection that the environment and humanity currently enjoy. Second, the rejection of intrinsic valuation should not be read as suggesting that it is inappropriate to create ‘‘absolute’’ prohibitions—those in which there is no balancing of interests. On the contrary, they can serve as useful short hand for clear-cut cases, or situations of res ipsa loquitur, to borrow from tort law principles. In other words, certain environmental damage (considered anthropocentrically) is so likely to outweigh any potential military advantage that it makes sense to agree upon the prescriptions in advance to facilitate normative clarity and precision. Such prescriptions may be framed in terms of weapons (e.g., persistent chemicals), tactics (e.g., nuclear ground bursts), targets (e.g., nuclear power facilities), or effects (e.g., long-term, widespread, and severe). Furthermore, it is not necessary to establish their prohibitive effect at a damage level above that which traditional legal analysis would yield. This is because the applicative intent of law is designed to foster more than case-specific ‘‘right’’ results. The broader goals of general and specific deterrence require prescriptive systems that are precise and understandable, and that lend themselves to practical enforcement. In isolated cases, right results may have to be sacrificed to secure the overall contributions that absolute prohibitions make to the greater good.

8.4.2 What is to be Done? The proposition that the law is inadequate raises the question of what to do about its deficiencies. Most of the discussion has centered around the desirability of a new law of armed conflict convention to govern environmental damage during warfare. Notable among the proposals have been Professor Plant’s model elements and Greenpeace’s call for a ‘‘Fifth Geneva Convention.’’ The prevailing view, however, is that a convention actually might prove counterproductive. Not surprisingly, those taking this position also generally assert the adequacy of existing

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prescriptions. If the law is adequate, why take on the daunting task of drafting a new convention? However, an assertion that the law is insufficient does not necessarily lead to the conclusion that a new treaty is necessary. Two additional issues must be addressed. First, if the law is insufficient, is an international convention the best remedy, or are alternatives such as domestic legislation or the adoption of common military manuals preferable? Second, even if a treaty is the optimal choice, given the current international political and legal context, is the time ripe for the enormous effort that would have to be mounted to secure an effective convention? This chapter concludes that a convention is the answer, but that it might prove counterproductive to pursue one aggressively right now. With regard to the need for an international agreement, it is useful to consider: (1) what the law needs to do, (2) whether those tasks are being accomplished by the existing law, and, if not, (3) whether a treaty would improve matters. For law to be effective, it must deter wrongful conduct. This purpose requires clearly enunciated practical norms and the support of the community of nations. Otherwise, states would not know the standards by which their conduct would be measured, nor those to which they should hold others; this scenario would be particularly disruptive to a legal regime which, albeit evolving, generally counsels against interference in the affairs of other states. Does the present environmental law of war meet these requirements? Without reiterating the many points made throughout this Article, it is fair to say that it falls short. The law is internally inconsistent, unclear, subject to varying definitions, haphazardly generated, and lacks the support of all relevant actors. A convention, on the other hand, could address the issue comprehensively, thereby providing the requisite consistency and clarity. Explicating the environmental conduct expected of states would limit destructive activities by those concerned with remaining within the confines of legality. It also would facilitate condemnation and reaction when rogue states violate the agreed-upon and articulated prescriptions. In particular, it would make it harder for states that might be so inclined to look the other way in the face of violations. The net result would be an increase in the deterrent effect of this body of law. In terms of practical impact, almost as important would be the existence of an agreed-upon set of norms that could be adopted by the world’s armed forces in their military manuals and serve as the basis for substantively common training. This is the purpose of the ICRC Guidelines. Regrettably, the ICRC effort has borne little fruit thus far, an unsurprising fact given the hodgepodge of law to which it had to resort in developing its guidelines.463 A comprehensive international convention on the subject presumably would resolve this obstacle. This, in turn, would advance the emergence of a common operational code among armed forces and policymakers.

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Another obstacle is the fact that the United States is not a party to one of the ICRC Guidelines’ key reference points, Protocol I.

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Despite the advantages of a treaty, admittedly, there would be downsides. Some critics of the idea contend that a treaty is not the appropriate legal instrument to address the topic. For instance, in order to secure agreement, treaties are often subject to declarations, understandings, and reservations. The result is a complicated web of legal relationships that vary based on the parties involved in a particular issue. Indeed, this phenomenon was illustrated in many of the instruments discussed above, such as Protocol I, ENMOD, and the 1925 Gas Protocol. Given the variety of perspectives on the environmental law of war, declarations, understandings, and reservations are likely; the complexity of an already complex subject would thereby swell. Opponents also note that treaties become outdated, whereas customary law, based as it is in state practice, is more adaptive. The pace of scientific discovery exacerbates this distinction, for when dealing with technologically driven agreements there is always the risk that science will outpace their prescriptive utility. Such arguments are well taken, but not entirely convincing. Even with reservations, a convention almost certainly would be more comprehensive and consistent than the current body of law, composed as it is of everything from custom, to turn-of-the-century agreements that are silent on the issue of the environment, to 1970s vintage conventions that still are not universally accepted. Moreover, while international agreements can become outdated, once the ground has been broken with the first iteration of a treaty it is easier to update the regime later.464 Arguably, then, the risk of becoming dated is outweighed by the benefits that clarity would provide over the life of a treaty. Of course, this assumes that the convention is well done and that it does not create problems such as those raised by Protocol I and ENMOD’s terminological schizophrenia. It also assumes that international consensus can be reached on the subject—a major assumption, to say the least. Despite the usefulness of a convention, is the time right for one? There are very practical reasons to argue that it is not. United States experience with major international treaties has not always been positive. In the cases of both the Law of the Sea Convention and Protocol I, the United States actively participated in negotiations, only to reject what the respective diplomatic conferences produced. Nearly two decades later, the United States is still not a party to either agreement (although this may change with the LOS Convention in the near future). Regardless of the substantive merits of our position, to be the odd man out in these widely accepted treaty regimes certainly is not an enviable position. Is there any greater likelihood of success in drafting an environmental convention, one with comprehensive norms that are more than hortatory or aspirational, on which all parties can agree? Given the anthropocentric v. intrinsic value and developing v. developed fault lines described earlier, the search for consensus 464 This happened with the Law of the Sea Convention. The U.S. objected to the seabed mining provisions of the treaty. See LOS Convention, supra note 172, pt. XI. Another example is Protocol I, which was designed to update the Geneva Conventions. See Protocol I, supra note 8. While it has proven somewhat difficult to secure universal agreement on Protocol I, the process of securing consensus probably moves as quickly as the evolution of customary principles.

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would certainly be challenging. This raises the question of whether it would be preferable to work with the existing prescriptions, accepting their limitations and benefiting from what little common ground does exist. To commence full-fledged negotiations at a point in the development of the law at which normative limits are so unclear and cognitive perspectives so contradictory would be ill advised. Additionally, the effectiveness of any new convention would be limited by the state of science. As the Gulf War experience made clear, there is much we do not understand about both the effects of war on the environment and its use to harm one’s enemies. Is it appropriate to initiate a treaty in an environment of relative ignorance, or would it be better to work with current prescriptions until the quantum and quality of knowledge improve? This is a particularly relevant issue if the goal is to include provisions that address specific means and methods of warfare, rather than abstract descriptions of effect (e.g., widespread, long-term, severe). It will be difficult to reach consensus on weapons, tactics, and targets absent a firmer scientific base than that existing during the Gulf War. To summarize, we clearly need a convention, and should begin preparatory work toward formulating a coherent position on its broad parameters. Today we are far enough removed from the emotionalism evoked by the Gulf War environmental destruction to explore rationally the merits and nature of a treaty regime that would respond to contemporary concerns about environmental protection and give warfighters the normative guidance they deserve. Exploratory first steps would force leading states to acknowledge the existing legal shortcomings and begin the process of rectifying them. That said, at this point in time, the benefits of aggressively pursuing an environmental law of war convention are outweighed by the risk that it would further weaken the inadequate regime that currently exists to protect the environment. Weakening could result from the international political machinations that would attend multilateral negotiations, a possibility compounded by the risks associated with negotiating with a less than robust information base. In order to forge the consensus necessary today, an agreement would inevitably end in highly diluted prescriptions; neither law nor science is sufficiently developed to give the effort a fighting chance. The belief that this is not a propitious time to take on a major new treaty effort is shared by both the ICRC’s Hans-Peter Gasser and Conrad Harper of the State Department, though they do not necessarily embrace the approach taken in this chapter to arrive at this conclusion. At the Naval War College Conference, Mr. Gasser argued: In terms of time, energy and resources, the cost of drafting, negotiating and adopting a new international treaty even on less difficult and controversial issues is today very high indeed. Moreover, failure of a codification attempt may in the end be more harmful to the cause than leaving the law as it is. And there is always the risk that a new treaty may not be ratified by a large number of states.465

465

Gasser 1996, manuscript at 5–6.

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Speaking at the same conference, Mr. Harper noted: To the extent that widespread agreement on new laws and standards could be reached— and I have my doubts—the resulting agreement might likely resemble a lowest, common denominator, decidedly unhelpful in dealing with hard cases. Or, in order to gamer consensus, a new agreement might well be a model of ambiguity, the value of which could also be fairly questioned.466

Given the current state of affairs, both are correct—for the moment. This analysis raises the question of what can be done now to alleviate the immediate difficulties posed by the existing law. First, it is self-evident that those with influence on the international lawmaking process need to reconsider the offthe-shelf assessment of the law’s adequacy. Problems that have been identified need to be worked through in a measured, reflective, and comprehensive fashion. The dialogue must continue to evolve, and the tough issues—anthropocentric v. intrinsic valuation, the contextuality of law, and law’s directional and temporal character-have to be faced head on. In the interim, states can begin addressing the issue individually. Arguably, the United States should seriously reconsider its refusal to ratify Protocol I. Objections to the agreement that were valid in an era of bipolarity may no longer be as compelling today. As to the environment, it is true that Protocol I’s relevant provisions are less than perfect. Yet in the new global paradigm, the United States needs to be much more concerned about becoming the victim of environmental destruction than about having its operational hands tied by the Convention’s prohibitions. This argument is particularly compelling if our concerns extend to the environments of potential allies and if we reflect upon who our likely adversaries might be. Finally, we should not forget that the United States is better able to adjust to limitations on methods and means of warfare than our enemies because of our overwhelming technological superiority, the redundancy of our capabilities, and the quality of the forces with which we are most likely to be allied. These factors give us some leeway in accepting legal regimes that, though imperfect, represent an overall step forward. Simply put, what is needed is a de novo legal and operational net assessment. We need to look at the big picture, not to become trapped in the minutiae. Unfortunately, measured reflection and reconsideration of our position on international treaties will not solve the warfighters’ immediate dilemma, a daunting void of normative guidance. The problem is very real. How should judge advocates advise their commanders? What decision standards should commanders employ when confronted with the prospect that their militarily necessary actions might damage the environment? What can we do to redress the compelling need for uniform and usable guidance? Obviously, the armed forces must continue to seek a common understanding of the environmental law of war. Positive steps in this direction are apparent throughout the Department of Defense. Sponsorship of the conference at the Naval 466

Harper 1996, at 9.

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War College and publication of its proceedings, addition of the subject to the Environmental Law Advanced Course at the Air Force Judge Advocate General School, and devotion of a chapter to the environment in the Army’s Operational Law Handbook are all extremely laudable. We need to continue addressing the subject aggressively. However, the most important and immediate step the United States can take to foster clarity presents itself in the new multiservice law of war manual that is currently being drafted.467 Once in place, this single source will set a uniform standard for operations by U.S. forces. Perhaps even more significantly, the manual represents a chance to influence the rest of the world in the development of this area of law. Other armed forces inevitably will follow the U.S. lead. As an example of this tendency, consider Naval Warfare Publication 9, The Commander’s Handbook on the Law of Naval Operations. Widely recognized as the most authoritative official source setting forth the naval law of armed conflict, this handbook is kept within arm’s reach of the sailors of many nations and serves as their guide to the law of armed conflict.468 The new multiservice manual promises to be even more influential, particularly in light of the ever-growing leadership role that the United States is playing in international military operations, including MOOTW. But there is more involved than simply articulating the formal law. Military manuals serve an important function in making law. As Michael Reisman and William Leitzau have noted in their excellent article on the subject, military manuals are an essential component in the international lawmaking process, often the litmus test of whether a putative prescriptive exercise has produced effective law. Without adequate dissemination, this putative international lawmaking is an exercise in the elaboration of myth through lex simulata rather than the installation of an effective operational code.469

In other words, law acquires normative relevance when it becomes internalized, both by the system and by those who are part of it. Systemic internalization is accomplished through acceptance and dissemination of the manual by authoritative military decision-makers. Individual internalization is fostered by the system’s acceptance (military personnel tend to grant the system great deference) and through practice of the norms set forth. Ultimately, an operational code emerges. Thus, a unique opportunity is at hand, not only to provide our policymakers and warfighters with the legal guidance they require, but also to shape the law itself. Drawing on the analysis presented throughout this chapter, and cognizant of the importance of keeping law of war manuals simple (they are designed primarily for warfighters, not lawyers), we can envision the rough outlines of such a manual.

467

For an excellent analysis of the roles of military manuals, see Reisman and Leitzau 1991. The new Navy manual, NWP 1–14 M, supra note 178, is certain to be as widely adopted as its predecessor, NWP 9. 469 Reisman and Leitzau 1991, at 1. 468

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First, the manual’s provisions should apply as a matter of policy whenever U.S. forces resort to force, unless the rules of engagement approved by the appropriate authorities (given the political ramifications, most likely the National Command Authorities) indicate otherwise.470 Avoiding legal dissection of international v. noninternational armed conflict issues in the manual will avoid confusion by troops in the field. A presumption in favor of international armed conflict standards also will help preclude after-the-fact criticism of U.S. actions. Another topic that should be avoided in the manual is the applicability of peacetime law. Its prescriptions are simply too uncertain, and its applicability too complex, for it to be incorporated directly into a usable law of war manual at this time.471 The applicability of general customary law principles such as necessity, proportionality, and humanity to environmental damage merits particular emphasis in the manual. Given the confusion it has generated, the concept of military necessity needs to be clarified by pointing out that it is a prerequisite to legality, not a device to excuse deviations from environmental norms.472 For the sake of clarity, it should also be pointed out that all of the prohibitions extend to the global commons (e.g., the high seas). Similarly, ‘‘property’’ and ‘‘civilian objects’’ are best defined as including res communes, such as air. Also deserving emphasis is the concept of protection of the environment per se. This can be done by including a separate section on the environment or adding qualifiers at appropriate places in the text. Despite the need to address the environment as an independent entity, careful draftsmanship is required to avoid creating the impression that an intrinsic value approach is being adopted. Just because the environment deserves to be singled out for protection does not imply that it should be valued intrinsically instead of anthropocentrically. Indeed, special care must be taken not to incorporate, even unintentionally, intrinsic value concepts. This is most likely to be done through the inclusion of absolute prohibitions. To minimize this possibility, it is best to articulate prohibitions in terms of weapons, tactics, or targets—not results or effects. All absolute prohibitions present some risk. They are essentially a form of legal shorthand that supplants the need to do proportionality calculations in situations analogous to res 470

The Army’s current position is that the 1993 Chemical Weapons Convention is not generally applicable to MOOTV. However, U.S. policy limiting the uses of chemicals to those set forth in Executive Order 11,850 for riot control agents would apply to MOOTW. See Operational Law Handbook, supra note 179, at 5-5; see also supra notes 427–428 and accompanying text. 471 A caveat that peacetime law may be applicable to the extent it is consistent with the law of armed conflict could be included as a footnote if an annotated version is produced (as is being done with NWP 1–14 M, supra note 178). The ICRC Guidelines provide an example of how such a provision might read: ‘‘International environmental agreements and relevant rules of customary law may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed conflict.’’ ICRC Guidelines, supra note 149, para 5. 472 The ICRC Guidelines correctly state the standard: ‘‘Destruction of the environment not justified by military necessity violates international humanitarian law… The general prohibition to destroy civilian objects, unless such destruction is justified by military necessity, also protects the environment.’’ ICRC Guidelines, supra note 149, paras 8–9.

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ipsa loquitur. By their very nature, there will be times when absolute prohibitions preclude an action that would otherwise be acceptable. That is the cost of having them. Depending on how they are written, there is even a risk that their application, by operating outside human concerns, actually would lower the level of protection provided to humans. To avoid this unacceptable result, a provision could be included in the manual to the effect that an absolute prohibition does not apply if, using the Protocol I, article 55 language, the prohibition would unacceptably heighten the risk to human health and survival. Target-based prohibitions should include the Protocol I ban on attacking ‘‘objects indispensable to the civilian population’’ when the purpose is to deny those objects to the civilian population. Since the United States supports this Protocol I prohibition, it is reasonable to state it in the absolute.473 As a matter of policy, the manual should also include the Protocol’s prohibition on attacking works containing dangerous forces. This would represent only a minor limitation on U.S. operations, for it would be the exceptional case in which the benefits of attacking them would outweigh the political costs of doing so. Nevertheless, since the prohibition would be policy-based, an exception for NCA-approved strikes is advisable. Weapons-specific prescriptions found in international law (e.g., the Chemical Weapons Convention when ratified) and U.S. policy pronouncements (e.g., Executive Order 11,850) are equally necessary. In light of the political implications deriving from Protocol III to the Conventional Weapons Convention, the use of incendiaries against environmental targets should be prohibited as a matter of policy except when employed against a target that is a military objective clearly separated from concentrations of civilians,474 or when otherwise authorized in rules of engagement approved by appropriate authorities. Given the political risks, it would be reasonable to designate the NCA as the appropriate authority, though this power could be delegated. Since not all possible weapons, tactics, and targets could possibly be addressed in the manual, it will be necessary to incorporate some result-based prohibitions. As a general rule, they should contain such caveats as suggested above. Of course, the most compelling dilemma regarding such prescriptions is whether to adopt the ‘‘widespread, long-standing, and/or severe’’ formula. This formula should be adopted. It is clearly the prevailing standard: It is found in both of the binding instruments directly on point, Protocol I and ENMOD, as well as in publications such as the ICRC Guidelines and the German manual. The only potential alternative is the ‘‘due regard’’ criterion offered in NWP 1–14 M475 and the San Remo Manual.476 While it may make sense to employ this maritime standard of care in

473

The technique is considered a form of starvation. See Deployment Deskbook, supra note 318, tab 12, paras 1.8.5–1.8.5.1. 474 The Protocol allows use in this circumstance. See Protocol III, supra note 134, article 2, para 3. 475 See supra note 178. 476 See supra note 171.

8.4 Where to from Here?

475

the naval context, it is not widely accepted as a standard in land warfare, nor is there any firm basis for its use in existing environmental law of war. Additionally, it is questionable whether due regard adds much beyond traditional customary international law principles; even if it did, it is a standard that invites subjective interpretation. For better or worse, ‘‘widespread, long-standing, and/or severe’’ is the standard of choice in the international community. Therefore, the United States should adopt it as its own and direct its efforts at securing consensus on a suitable definition. Working towards a common understanding is the key. Since the standard is illdefined, the fashion in which the manual unravels the definitional maze will prove very influential. How might it do so? To begin with, when speaking of manipulating environmental processes as a weapon, the definitions should be drawn from the ENMOD Understanding. After all, that particular component of the legal regime is relatively settled. However, what of damage to the environment? An excellent approach is that adopted by the Army in defining the Protocol I terms in its Operational Law Handbook. ‘‘Long-term’’ is measured in decades (20 or 30 years), a definition that enjoys the support of most practitioners and scholars because it is viewed as comporting with the original intent of the drafters. Since there is no indication of what was meant by the term ‘‘widespread’’ in the Protocol I drafting process, it makes sense to defer to its sole legal definition, that of ENMOD. Though ENMOD definitions were specifically said not to bind other agreements, this does not negate the logic of using them to minimize confusion if doing so makes sense contextually. Thus, as the Army does, the new manual should describe the term as implying damage that extends to several hundred kilometers. With regard to ‘‘severe,’’ the Handbook refers to the ‘‘prejudices the health or survival of the population’’ language of article 55.477 While it certainly is essential to include damage at this level, ENMOD’s definition is more comprehensive. As noted, ‘‘severe’’ was defined in the Understanding related to article I as ‘‘involving serious or significant disruption to human life, natural and economic resources or other assets,’’ a definition that encompasses ‘‘health and survival,’’ but also has the advantage of extending to ‘‘property.’’478 Extension of the definition in this manner is consistent with Protocol I protections generally, and with the international law of armed conflict more broadly. Except when restating the ENMOD prohibition, the phrase ‘‘widespread, longterm, and severe’’ should be cast in the conjunctive. To do otherwise would set an excessively high level of protection. It would be illogical to forbid absolutely an action that caused long-term and widespread environmental damage if that damage were insignificant. Similarly, if the damage were long-term and severe, but isolated, an absolute ban would constitute overreaching. A better result would be achieved through simple proportionality analysis.

477 478

See supra note 337 and accompanying text. See supra note 395 and accompanying text.

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Finally, inclusion of a section on responsibility is advisable, though care must be taken not to overstate the case. Individual responsibility could be addressed by noting that breach of the manual’s provisions may constitute a violation of the Uniform Code of Military Justice and, in certain cases, amount to a war crime. A provision on state responsibility should point out that states may be held responsible for the acts of their military forces, and that obligations owed under international law to nonbelligerents generally remain in effect during armed conflict. Hopefully, these suggestions will offer food for thought as the effort to craft the new law of war manual gains momentum. Whatever the outcome, the drafters must understand the great opportunity and responsibility that the task presents. There is probably no endeavor currently underway anywhere having a greater potential for shaping the environmental law of the future.

8.5 Conclusion After all is said and done, the assertion that the present environmental law of war is adequate does not hold water. It is an imprecise law, full of gaps and competing perspectives. The present standards are simply not sufficiently robust to survive the hostile environment of international relations. Indeed, even after the Gulf War, a case involving near-universal condemnation of the resulting environmental destruction, the basis for state responsibility was found elsewhere. This should be of enormous concern to those who value the environment. Despite its shortcomings, the time is not ripe for a top-to-bottom reworking of the law. We first have to admit that we have a problem—acknowledge that the emperor has no clothes, if you will—and then we must attempt to better our understanding of the problem. To do that, it is necessary to identify legal trends and uncover the law’s motivating forces. If we are ever to develop a consensus, we must also grasp the varying cognitive prisms through which the topic is viewed. Hopefully, this chapter has contributed to the crucial dialogue that must precede further progress in the field. Finally, we must understand that this is not an ivory tower exercise for theorists who roam the halls of academia. On the contrary, the environment affects us all in ways that we are only beginning to comprehend. Just as important, the issue has real-world operational implications for commanders in the field. They deserve guidance that is clear, comprehensive, and practical. In the end, this is what the entire discussion has been about—giving warfighters the tools they require to safeguard the values of the global community effectively. If this chapter has contributed in any way to that end, then the time and effort expended will have been very well rewarded indeed.

8.5 Conclusion

477

Abbreviations DOD

Department of Defense

ENMOD

Convention on the prohibition of military or any other hostile use of environmental modification techniques convention

ICEL

International Council of Environmental Law

ICRC

International Committee of the Red Cross

ILC

International Law Commission

LOS

Law of the Sea

MOOTW

Military operations other than war

NATO

North Atlantic treaty organization

NCA

National command authority

NSD

National security directive

OSD

Office of the Secretary of Defense

ROPME

Regional Organization for the Protection of the Marine Environment

SAM

Surface-to-air missiles

U.S.

United States of America

UNCED

United Nations Conference on the Environment and Development

UNEP

United Nations Environment Programme

UXO

Unexploded ordnance

WMD

Weapons of mass destruction

References Al-Khasaweh A (1992) Round-table session I, general principles and methods for executing a new convention. In Plant G (ed) Environmental protection and the law of war Aldrich GH (1986) Progressive development of the laws of war: a reply to criticisms of the 1977 Geneva protocol 1. Va J Int’l L 26:693 Aldrich GH (1991) Prospects for the United States ratification of additional protocol I to the 1949 Geneva conventions. Am J Int’l L 85:1 Antoine Ph (1992) International humanitarian law and the protection of the environment in time of armed conflict. Int’l Rev Red Cross, Nov–Dec Arkin WM (1996) The environmental threat of military operations. In: NWC symposium papers Arkin WM et al (1991) On impact: modern warfare and the environment: a case study of the Gulf war

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Bagley DA (1989) Ratification of protocol 1 to the Geneva conventions of 1949 by the United States: discussion and suggestions for the American lawyer-citizen. Loy LA Int’l Comp LJ 11:439 Baker B (1993) Legal protections for the environment in times of armed conflict. Va J Int’l L 33:352 Best G (1988) The historical evolution of cultural norms relating to war and the environment. In: Westing AH (ed) Cultural norms, war and environment, p 18 Bettauer RJ (1992) The United Nations Compensation Commission—developments since October 1992. Am J Int’l L 89:416 Blix H (1984) Arms control treaties aimed at reducing the military impact on the environment. In: Makarczyk J (ed) Essays in international law in honour of Judge Manfred Lachs, p 703 Bothe M (1991) The protection of the environment in times of armed conflict: legal rules, uncertainty, deficiencies and possible developments. Germ YB Int’l L 34:54 Bothe M (1992) Environmental destruction as a method of warfare: do we need more law? Disarmament 15:101 Bothe M et al (1982) New rules for victims of armed conflicts Boustany N (1990) Saddam threatens Mideast’s oil fields: ‘‘Choking’’ embargo cited as justification. Wash Post, Sept 24 Caggiano MJT (1993) The legitimacy of environmental destruction in modern warfare: customary substance over conventional form. BC Envtl Aff L Rev 20:479 Carruthers R (1993) International controls on the impact on the environment of wartime operations. Envtl Plan LJ 10:38 Crook JR (1993) The United Nations Compensation Commission—a new structure to enforce state responsibility. Am J Int’l L 87:144 Cruitwell CRMF (1934) A history of the great war, 1914–1918 Delbrück J (1982) War, effect on treaties. In: Encyclopedia of Public International Law 4, p 311 Department of the Navy (1989) The commander’s handbook on the law of naval operations. Navy Warfare Publication 9-Rev A Drucker MP (1989) The military commander’s responsibility for the environment. Envtl Ethics 11:135 EarIe SA (1992) Persian gulf pollution: assessing the damage one year later. Nat’l Geographic, Feb 1992 Experts Warn of Global Fallout from Warfare: Environment; Scientists Say that Smoke from Blazing Kuwait Oil Fields Could Affect the Climate (1991) LA Times, Jan 3 Falk RA (1973) Environmental warfare and ecocide-facts, appraisal, and proposals. Bull Peace Proposals 4:80 Falk RA (1976) Environmental warfare and ecocide. In Falk RA (ed) The Vietnam war and international law, vol 4, p 287 Falk R (1989) Revitalizing international law Falk RA (1992) The environmental law of war: an introduction. In: Plant G (ed) Environmental protection and the law of war Fischer D, Müller H (1991) The fourth review of the non-proliferation treaty. 1991 Stockholm Int’l Peace Res Inst YB, p 555 Fleck D (1993) Legal and policy perspectives. In: Fox H, Meyer MA (eds) Effecting compliance, pp 155–156 Fleck D (1996) Protection of the environment during armed conflict and other military operations: the way ahead. In: NWC symposium papers Ford P (1991) Vital Saudi water plant prepares for oil slick. Christ Sci Monit, Feb 1 Fox HM (1993) Reparations and state responsibility. In: Rowe P (ed) The Gulf War 1990–91 in International and English Law Gasser H-P (1987) AGORA: the U.S. decision not to ratify protocol 1 to the Geneva conventions on the protection of war victims. Am J Int’l L 81:910 Gasser H-P (1995) For better protection of the natural environment in armed conflict: a proposal for action. Am J Int’l L 89:637

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Gasser H-P (1996) The protection of the environment during armed conflict and other military operations. In: NWC symposium papers Gleick J (1987) Chaos: making a new science Goldblat J (1984) The environmental modification convention of 1977: an analysis. In: Westing A (ed) Environmental warfare: a technical, legal and policy appraisal, p 53 Goldblat J (1991) Legal protection of the environment against the effects of military activities. Bull Peace Proposals 22:399 Green LC (1996) State responsibility and civil reparation for environmental damage. In: NWC symposium papers Greenwood C (1993) Customary international law and the first Geneva protocol of 1977 in the Gulf conflict. In: Rowe P (ed) The Gulf War 1990–91 in International and English Law Greenwood C (1996) State responsibility and civil liability for environmental damage caused by military operations. In: NWC symposium papers Grunawalt R et al (eds) (1996) Protection of the environment during armed conflict and other military operations. Naval War College International Law Studies no. 69 Gulf War Threatens Environment, Jordan King Warns (1990) LA Times, Nov 6 Harper CK (1996) Protecting the environment during armed conflict: the international community’s effort to enforce norms, remedy harms, and impose accountability. In: NWC symposium papers Hersch AM (1972) Rainmaking is used as a weapon by U.S. NY Times, July 3 Horowitz T (1992) These men dance through minefields, cleaning up Kuwait. Wall St J Eur, Jan 21 ICRC (1990) Note verbale and memorandum (Dec 14) International Comm. of the Red Cross (1972) 2 Report on the work of the conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts International Council of Envtl Law (1991) Law concerning the protection of the environment in times of armed conflict, final report of consultation of Dec 13–15 (unpublished memorandum, on file with author) Joint Chiefs of Staff (1995a) Doctrine for joint operations ch V (Joint Publication 3-0) Joint Chiefs of Staff (1995b) Information warfare: legal, regulatory, policy and organizational considerations for assurance (Research Report for the Chief, Information Warfare DivisionJ6K, July 4) Kalshoven F (1978) Reaffirmation and development of international humanitarian law applicable in armed conflicts: the diplomatic conference, Geneva, 1974–1977, Neth YB Int’l L 9:107 Kane JP (1992) Night vision goggles and desert storm. Marine Corps Gazette, Feb 1992 Krepinievich AF (1995) Cavalry to computer: the pattern of military revolutions. In: Naval War College (ed) Strategy and force planning, p 58 Kutner L, Nanda VP (1991) Draft indictment of Saddam Hussein. Denv J Int’l L Pol’Y 20:91 Kuwait Env’t Protection Council (1991) State of the environment report: a case study of Iraqi regime crimes against the environment Leibler A (1992) Deliberate wartime environmental damage: new challenges for international law. Cal W Int’l LJ 23:67 Libiclo MC (1995) What is information warfare? Strategic F, May 1995 Marris M (1991) Sophisticated radar to gauge size of oil spill, AP, Feb 21 Matheson MJ (1987) Session one: the United States position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva conventions. Am U, 1 Int’l L Pol’Y 2:419 McCullough DG (ed) (1966) The American heritage history of world war II McDougal M, Reisman WM (1981) International law in contemporary perspective, p 1043 McFadden R (1991) Oil threatens fishing and water supply. NY Times, Jan 26 McNeill JH (1993) Protection of the environment in times of armed conflict: environmental protection in military practice. Hague YB Int’l L, p 75 Meron T (1987) The Geneva conventions as customary law. Am J Int’l L 81:348

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Mickelson K (1993) Rereading trail smelter. Can YB Int’l L 31:219 Moore JN (1992) Crisis in the Gulf: enforcing the rule of law Morris V (1993) Protection of the environment in wartime: the United Nations general assembly considers the need for a new convention. Int’l L 27:775 Norton PM (1976) Between ideology and the reality: the shadow of the law of neutrality. Harv Int’l LJ 17:249 NWC Symposium Papers (1995) Papers presented at the symposium on the protection of the environment during armed conflict and operations other than war, September 1995; published in Grunawalt R et al (eds) (1996) Protection of the environment during armed conflict and other military operations, Naval War College International Law Studies No. 69 Office of Air Force History (ed) (1983) The command of the air, p 338 Okorodudu-Fubara MT (1991) Oil in the Persian Gulf War: legal appraisal of an environmental warfare. St Mary’S Ll 23:123 Pictet JS (ed) (1958) International Comm. of the Red Cross, commentary: Geneva convention relative to the protection of civilian persons in time of war Plant G (1992a) Elements of a ‘Fifth Geneva’ convention on the protection of the environment in time of armed conflict. In: Plant G (ed) Environmental protection and the law of war, p 37 Plant G (ed) (1992b) Environmental protection and the law of war Reisman WM (1987) Jurisprudence: understanding and shaping law Reisman WM, Antoniou C (eds) (1994) The laws of war: a comprehensive collection of primary documents on international laws governing armed conflict Reisman WM, Baker JE (1992) Regulating covert action Reisman WM, Leitzau WK (1991) Moving international law from theory to practice: the role of military manuals in effectuating the law of armed conflict. In: Robertson HB Jr (ed) The law of naval operations 1 (Naval War College International Law Studies, vol 64) Roberts GB (1985) The new rules for waging war: the case against ratification of additional protocol I. Va 1 Int’l L 26:109 Roberts A (1992) Environmental destruction in the 1991 Gulf war. Int’l Rev Red Cross, Nov–Dec 1992 Roberts A (1996) Environmental issues in international armed conflict: the experience of the 1991 Gulf war. In: NWC symposium papers Roberts A, Guelff R (eds) (1982) Documents on the law of war Schachter O (1991) United Nations law in the Gulf conflict. Am J Int’l L 85:452 Schindler D, Toman J (eds) (1988) The laws of armed conflicts Schmidt WG (1984) The protection of victims of international armed conflicts: protocol I additional to the Geneva conventions. AF L Rev 24:189 Schmitt MN (1991) Aerial blockades in historical, legal and practical perspective. USAFA J Legal Stud 2:21 Schmitt MN (1994) The resort to force in international law: reflections on positivist and contextual approaches. AF L Rev 37:105 Schmitt MN (1996) The environmental law of war: an invitation to critical reexamination. USAFA J Legal Stud 7:237 Scientists Warn of Environmental Disaster from a Gulf War (1991) Reuters, Jan 2, available in LEXIS, News Library, Allnws File Sharp WG Sr (1992) The effective deterrence of environmental damage during armed conflict: a case analysis of the Persian Gulf war. Mil L Rev 137:1 Simonds SN (1992) Conventional warfare and environmental protection: a proposal for international legal reform. Stan J Int’l L 29:165 Simpson Ch (1995) National security directives of the Reagan and Bush administrations Sofaer AD (1988) AGORA: the U.S. decisions not to ratify protocol I to the Geneva conventions on the protection of war victims. Am 1 Int’l L 82:784 Terry JP (1992) The environment and the laws of war: the impact of desert storm. Naval War C Rev 15:61

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The Gulf War: Environment as a Weapon (1991) Am. Soc’Y Int’l L Proc 85:214 (remarks of Sebia Hawldns) Verwey WD (1994) Observations on the legal protection of the environment in times of international armed conflict. In: Hague YB Int’l L, p 35 Verwey WD (1995a) Protection of the environment in times of armed conflict: in search of a new legal perspective. Leiden J Int’l L 8:7 Verwey WD (1995b) Protection of the environment in times of armed conflict: do we need additional rules? In: NWC symposium papers Vien CV, Khuyen DV (1980) Reflections on the Vietnam war (U.S. Army Center of Military History Indochina Monographs) Walker GK (1996) Oceans law, the maritime environment, and the law of naval warfare. In: NWC symposium papers Weller M (ed) (1991) Iraq and Kuwait: the hostilities and their aftermath, p 339 Westing AH (1976) Ecological consequences of the second Indochina war Westing AH (1980) Warfare in a fragile world: the military impact on the human environment Weston BH (1991) Security council resolution 678 and Persian Gulf decision making: precarious legitimacy. Am J Int’l L 85:516 Williams WL (1980) Neutrality in modern armed conflicts: a survey of the developing law. Mil L Rev 90:9 Young G (1990) Cheney: ‘‘Clock is Ticking’’ for war, UPI, Dec. 23, available in LEXIS, News Library, Allnws File

Chapter 9

Wired Warfare: Computer Network Attack and Jus in Bello

Abstract This chapter examines the application of the jus in bello, or international humanitarian law (IHL), to information operations, specifically computer network attacks (CNA). Discussion centres on the use of CNA in the context of an international armed conflict, although the conclusions would apply equally to a non-international armed conflict for those customary rules of IHL which extend into that form of conflict. It begins by addressing the threshold issue of whether IHL applies at all to CNA. Concluding it does, the chapter goes on to explore the key aspects of IHL relevant to CNA operations, especially the rules which prohibit the use of indiscriminate weapons and those governing targeting. Of particular note is the discussion of the notion of ‘‘attack’’ in the CNA context. Ultimately, it is concluded that CNA presents a particular problem for application of the traditional IHL.

Contents 9.1 Applicability of Humanitarian Law to Computer Network Attacks ............................ 9.2 Computer Network Attack Targets................................................................................ 9.2.1 Combatants and Military Objectives ................................................................. 9.2.2 Civilians and Civilian Objects ........................................................................... 9.2.3 Dual-Use Objects................................................................................................ 9.2.4 Specifically Protected Objects ........................................................................... 9.3 Limits on Striking Legitimate Targets .......................................................................... 9.3.1 Indiscriminate Weapons ..................................................................................... 9.3.2 Distinction ...........................................................................................................

486 491 494 496 498 498 501 501 502

Previously published in 84 (No. 846) International Review of the Red Cross (2002) 365.

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_9,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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9.3.3 Proportionality .................................................................................................... 9.3.4 Minimizing Collateral Damage and Incidental Injury ...................................... 9.3.5 Perfidy ................................................................................................................. 9.4 Conclusions..................................................................................................................... References................................................................................................................................

503 505 506 507 509

Despite ongoing debates about the existence, or lack thereof, of a ‘‘revolution in military affairs’’, it is undeniable that twenty-first century warfare will differ dramatically from that which characterized the twentieth century. The tragic terrorist attacks of 11 September 2001 and their aftermath are dominating the headlines at the beginning of the new century. Perhaps equally remarkable will be the maturing of ‘‘information warfare’’ as a tool of combat.1 It will challenge existing doctrine on the waging of war, necessitate a revised concept of battle space and expand the available methods and means of warfare. Of particular note will be the impact of information warfare on the principles of international humanitarian law––and vice versa. In brief, information warfare is a subset of information operations, i.e. ‘‘actions taken to affect adversary information and information systems while defending one’s own information and information systems.’’2 Such operations encompass virtually any nonconsensual measures intended to discover, alter, destroy, disrupt or transfer data stored in a computer, manipulated by a computer or transmitted through a computer. They can occur in peacetime, during crises, or at the strategic, operational or tactical levels of armed conflict.3 Information operations are distinguished by that which is affected or protected––information.

1

The US National Military Strategy cites information superiority as a key element of its strategy for this century. ‘‘Information superiority is the capability to collect, process, and disseminate an uninterrupted flow of precise and reliable information, while exploiting and denying an adversary’s ability to do the same.’’ Joint Chiefs of Staff 1997, at n.p. For an excellent collection of essays on the nature of war in the twenty-first century, see Scales 2000. On the specific issue of information and conflict, see Metz 2000; Owens and Offley 2000; Copeland 2000; Alberts et al. 1999; Kuehl 1999; Khalilzad and White 1999; Denning 1999; Adams 1998. 2 Joint Chiefs of Staff, Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1–02, 12 April 2001, p. 203 (hereinafter JP 1–02). Operations that might constitute information operations include operations security, psychological operations, military deception, electronic warfare, physical attack and computer network attack. See Joint Chiefs of Staff, Joint Doctrine for Information Operations, Joint Publication 3–13, 9 October 1998, at I-9 (hereinafter JP 3–13). 3 At the strategic level, information operations can be employed to ‘‘achieve national objectives by influencing or affecting all elements (political, military, economic, or informational) of an adversary’s or potential adversary’s national power while protecting similar friendly elements.’’ At the operational level, the focus of information operations is ‘‘on affecting adversary lines of communication (LOCs), logistics, command and control (C2), and related capabilities and activities while protecting similar friendly capabilities and activities.’’ Finally, at the tactical level the objective is to affect adversary ‘‘information and information systems relating to C2, intelligence, and other information-based processes directly relating to the conduct of military operations….’’ JP 3–13, op. cit. (note 2), at I-2–I-3.

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485

Information warfare is narrower. It consists of ‘‘information operations conducted during time of crisis or conflict to achieve or promote specific objectives over a specific adversary or adversaries.’’4 Thus information warfare is differentiated from other operations by the context in which it occurs––crisis or conflict. Routine peacetime espionage is, for example, an information operation that does not constitute information warfare unless conducted during a crisis or hostilities. Computer network attacks (CNA), which may amount to information warfare or merely information operations, are ‘‘operations to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves.’’5 The essence of CNA is that, regardless of the context in which it occurs, a data stream is relied on to execute the attack.6 Thus, the means used set CNA apart from other forms of information operations. These means vary widely. They include, inter alia, gaining access to a computer system so as to acquire control over it, transmitting viruses to destroy or alter data, using logic bombs that sit idle in a system until triggered on the occasion of a particular occurrence or at a set time, inserting worms that reproduce themselves upon entry into a system and thereby overloading the network, and employing sniffers to monitor and/or seize data. This chapter addresses the use of CNA during international armed conflict and is limited to consideration of jus in bello, that body of law concerned with what is permissible, or not, during hostilities, irrespective of the legality of the initial resort to force by the belligerents.7 Discussion therefore centres on the use of CNA in the context of ‘‘State-on-State’’ armed conflict. Moreover, this chapter is an

4

JP 1–02, op. cit. (note 2), p. 203. Ibid., p. 88. The USAF Intelligence Targeting Guide, AF Pamphlet 14–210, 1 February 1998, para 11.4.3, notes the following information warfare employment concepts—Corruption: the alteration of information content; the manipulation of data to make it either nonsensical or inaccurate. Destroying existing knowledge. Deception: a specific type of corruption; the alteration of, or adding to, information to portray a situation different from reality. Creating false knowledge to include masquerading. Delay: the reversible slowing of the flow of information through the system, and the slowing of the acquisition and dissemination of new knowledge. Denial: the reversible stopping of the flow of information for a period of time; although the information may be transmitted and used within friendly territory, the adversary is denied access to it. The prevention of the acquisition and dissemination of new knowledge. Disruption: the reduction of the capacity to provide and/or process information (reversible). This is a combination of delay and corruption. The delay of the acquisition and dissemination of new knowledge and the destruction of existing knowledge. Degradation: the permanent reduction in the capacity to provide and/or process information. Destruction: the destruction of information before it can be transmitted; the permanent elimination of the capacity to provide and/or process information. 6 Thus electronic attack (EA) would not fall within this category. For instance, using an electromagnetic pulse to destroy a computer’s electronics would be EA, whereas transmitting a code or instruction to a system’s central processing unit to cause the power supply to short out would be CNA. Ibid. 7 On CNA and jus ad bellum, that body of international law governing the legality of the resort to force by States, see Schmitt 1999a, p. 885; Aldrich 2000, p. 223. 5

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effort to explore lex lata, rather than an exercise in considering lex ferenda. While setting forth lex ferenda is an especially worthy project as the nature of warfare evolves,8 the goal here is simply to analyze the applicability of existing humanitarian law to computer network attack, and identify any prescriptive lacunae that may exist therein.

9.1 Applicability of Humanitarian Law to Computer Network Attacks The threshold question is whether computer network attack is even subject to humanitarian law. To begin with, there is no provision in any humanitarian law instrument that directly addresses CNA, or, for that matter, information warfare or information operations; this might suggest that CNA is as yet unregulated during armed conflict. Additionally, it could be argued that the development and employment of CNA postdates existing treaty law and thus, having not been within the contemplation of the parties to those instruments, is exempt from the coverage thereof. A third possible argument for inapplicability is that humanitarian law is designed for methods and means that are kinetic in nature; since there is little that is ‘‘physical’’ in CNA, attacks by computers fall outside the scope of humanitarian law.9 In other words, humanitarian law applies to armed conflict, and computer network attack is not ‘‘armed.’’ The first two possibilities are easily dispensed with. The fact that existing conventions are silent on CNA is of little significance. First, the Martens Clause, a well-accepted principle of humanitarian law, provides that whenever a situation is not covered by an international agreement, ‘‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience.’’10 By this norm, all occurrences during armed conflict are subject to application of humanitarian law principles; there is no lawless void. The acceptance of ‘‘international custom’’ as a

8

For a discussion of CNA in the context of both law and ethics that conclude a new convention is required, see Bayles 2001, p. 44. 9 On this point see Haslam 2000, p. 157. See particularly her discussion of points made in Aldrich 1996, p. 99; and Shulman 1999, p. 939. 10 Additional Protocol I to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Article 1(2), 12 December 1977, 1125 3 (hereinafter Additional Protocol I). The original formulation of the Martens Clause in the preamble of the Hague Convention IV respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2295, I Bevans 634, states ‘‘the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’’, reprinted in Roberts and Guelff 2000, p. 67.

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source of law in Article 38 of the Statute of the International Court of Justice also demonstrates the fallacy of any contention of inapplicability based on the absence of specific lex scripta.11 Arguments focusing on the fact that CNA postdates present prescriptive instruments are similarly fallacious. Precisely this line of reasoning was presented to the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons. In its advisory opinion, the Court summarily rejected the assertion that because humanitarian ‘‘principles and rules had evolved prior to the invention of nuclear weapons’’, humanitarian law was inapplicable to them. As the Court noted, ‘‘[i]n the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons.’’12 There being no reason to distinguish nuclear from computer weapons, at least on the basis of when they were developed vis-à-vis the entry into force of relevant humanitarian law norms, the same conclusion applies to CNA. Furthermore, a review of new weapons and weapon systems for compliance with humanitarian law is a legal, and often a policy, requirement.13 Obviously, this would not be so if pre-existing law were inapplicable, ab initio, to nascent methods and means of warfare. This analysis leaves only the third argument for inapplicability of humanitarian law to computer network attack––that it is not armed conflict, at least not in the absence of conventional hostilities. In fact, armed conflict is the condition that activates jus in bello. Article 2 common to the four 1949 Geneva Conventions 11

The Statute of the International Court of Justice defines custom as ‘‘a general practice accepted by law.’’ Statute of the International Court of Justice, 26 June 1977, Article 38(1)(b), 59 Stat. 1031, T.S. No. 933, 3 Bevans 1153, 1976 Y.B.U.N. 1052. The US Restatement notes that custom ‘‘results from a general and consistent practice of states followed by them from a sense of legal obligation.’’ Restatement (Third), Foreign Relations Law of the US, sec. 102(2) (1987). See also North Sea Continental Shelf Cases, 3 ICJ Reports 1969, p. 44 (‘‘Not only must the acts concerned amount to settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it.’’); The Paquete Habana, 175 US 677, 20 S.Ct. 290, 44 L.Ed 320 (1900); The S.S. Lotus (France v. Turkey), PCIJ (ser. A) No. 10, 1927; Asylum Case (Colombia v. Peru), 5 ICJ Reports, 1950, p. 266; Case Concerning Right of Passage over Indian Territory (Portugal v. India), ICJ Reports, 1960, p. 6. For academic comment on customary international law, see Goldsmith and Posner 2000, p. 639; Kelly 2000, p. 449; D’Amato 1971. 12 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports, 1996, p. 226 (July 8), 35 International Legal Materials, p. 809, para 85. 13 Additional Protocol I, op. cit. (note 10), Article 36: ‘‘in the study, development, acquisition or adoption of new weapons, means or methods of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.’’ For the US, the weapon review is required by Department of Defense Instruction 5000.2, Operation of the Defense Acquisition System, 23 October 2000, para 4.7.3.1.4. It provides, in relevant part, that ‘‘DoD acquisition and procurement of weapons and weapon systems shall be consistent with all applicable domestic law and all applicable treaties, customary international law, and the law of armed conflict (also known as the laws and customs of war)… Additionally, legal reviews of new, advanced or emerging technologies that may lead to development of weapons or weapon systems are encouraged.’’

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provides that they apply, aside from specific provisions that pertain in peacetime, ‘‘to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’’14 The 1977 Additional Protocol I, which, like the Conventions pertains to international armed conflict, adopts the same ‘‘armed conflict’’ standard, one that has become an accepted customary law threshold for humanitarian law.15 The fact that the 1977 Additional Protocol II also embraces the term ‘‘armed conflict’’,16 albeit in the context of non-international armed conflict, demonstrates that armed conflict is a condition determined by its nature rather than its participants,17 by its location18 or, as was formerly the case with ‘‘war’’, by the belligerents’ declaration thereof.19 It seems relatively clear, then, that humanitarian law is activated through the commencement of armed conflict. But what is armed conflict? Commentaries published by the International Committee of the Red Cross on the 1949 Geneva Conventions and the 1977 Additional Protocols take a very expansive approach towards the meaning of the term. The former define armed conflict as ‘‘[a]ny difference arising between two States and leading to the intervention of armed forces… even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.’’20 Similarly, the Commentary on Additional Protocol I specifies that ‘‘humanitarian law… covers any dispute between two States involving the use of their armed

14

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, Article 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 (hereinafter GC I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, Article 2, 6 U.S.T. 3217, 75 U.N. T.S. 85 (hereinafter GC II); Geneva Convention Relative to the Treatment of Prisoners of war, 12 August 1949, Article 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 (hereinafter GC III); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Article 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 (hereinafter GC IV) (emphasis added). The Conventions are reprinted in Roberts and Guelff 2000, at 195, 221, 243 and 249, respectively. 15 Additional Protocol I, op. cit. (note 10), Article 1. 16 Additional Protocol II to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 16 International Legal Materials, p. 1442 (1977), reprinted in Roberts and Guelff 2000, p. 481. 17 Additional Protocol I deals with conflict between States, whereas Additional Protocol II is concerned with conflict between a State and a rebel group (or groups). 18 Non-international armed conflict occurs solely within the confines of a single State. 19 Hague Convention III relative to the Opening of Hostilities, 18 October 1907, Article 1, I Bevans 619, 2 American Journal of International Law, vol. 2 (Supp.), 1908, p. 85, reprinted in Schindler and Toman 1988, p. 57. According to the Commentary on the 1949 Geneva Conventions, ‘‘[t]here is no longer any need for a formal declaration or war, or for recognition of the state of war, as preliminaries to the application of the Convention. The Convention becomes applicable as from the actual opening of hostilities.’’ Jean Pictet (ed.), Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32 (hereinafter GC I Commentary). 20 GC I Commentary, op. cit. (note 19), pp. 32–33 (emphasis added).

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forces. Neither the duration of the conflict, nor its intensity, play a role…’’21 That on Additional Protocol II describes armed conflict as ‘‘the existence of open hostilities between armed forces which are organized to a greater or lesser degree.’’22 The sine qua non in all three cases is commitment of armed forces. But a dispute or difference resulting in the engagement of armed forces cannot be the sole criterion. Military forces are used on a regular basis against adversaries without necessarily producing a state of armed conflict––consider aerial reconnaissance/surveillance operations as just one example. Furthermore, it is now generally accepted that isolated incidents such as border clashes or small-scale raids do not reach the level of armed conflict as that term is employed in humanitarian law.23 Accordingly, State practice, supplemented by the writings of publicists, illustrates that Additional Protocol I’s dismissal of intensity and duration has proven slightly overstated. Instead, the reference to armed forces is more logically understood as a form of prescriptive shorthand for activity of a particular nature and intensity. At the time when the relevant instruments were drafted, armed forces were the entities that conducted the contemplated activity at the requisite level of intensity; by focusing on the armed forces, the intended ends were achieved. Restated, the relevant provisions of the Conventions and their commentaries were actor-based because citing the actors engaged in the undesirable conduct—armed forces—was, at the time, a convenient and reliable method for regulating it. And what was that conduct? The logical answer is found in the underlying purposes of humanitarian law. A review of its instruments and principles makes clear that protecting individuals who are not involved in the hostilities directly, as well as their property, lies at their core.24 Most notably, protected entities include civilians and civilian objects, as well as those who are hors de combat (e.g. wounded or captured personnel) or provide humanitarian services (e.g. medical personnel). As for the protection they are entitled to, it is usually framed in terms of injury or death or, in the case of property, damage or destruction. These Geneva Law purposes are complemented by Hague Law norms intended to limit suffering generally through restrictions on certain weaponry and methods of warfare.25 21 Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987, para 62 (emphasis added) (hereinafter Additional Protocols: Commentary). The Commentary on Additional Protocol II refers back to the commentary on common Article 3 of the 1949 Conventions and to that on Additional Protocol I. Ibid., para 4448, fn 2. 22 Additional Protocols: Commentary, op. cit. (note 21), para 4341 (emphasis added). 23 See, for example, discussion in De Lupis 2000, pp. 20–21; Greenwood 1995, p. 42. 24 For instance, the Preamble to Additional Protocol I notes that ‘‘it [is] necessary… to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application….’’ Additional Protocol I, op. cit. (note 10). 25 The designation ‘‘Geneva Law’’ refers to that portion of the law of armed conflict addressing protected categories of persons: civilians, prisoners of war, the sick or shipwrecked, and medical personnel. It is distinguished from ‘‘Hague Law’’, which governs methods and means of combat, occupation, and neutrality. For a discussion of the international instruments which fall into each body of law, and of those which display elements of both, see DeMulinen 1987, pp. 3–4.

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This excessively abbreviated summary of humanitarian law’s fundamental purposes elucidates the term armed conflict. Armed conflict occurs when a group takes measures that injure, kill, damage or destroy. The term also includes actions intended to cause such results or which are the foreseeable consequences thereof. Because the issue is jus in bello rather than ad bellum, the motivation underlying the actions is irrelevant. So too is their wrongfulness or legitimacy. Thus, for example, the party that commences the armed conflict by committing such acts may be acting in legitimate anticipatory (or interceptive) self-defence; nevertheless, as long as the actions were intended to injure, kill, damage or destroy, humanitarian law governs them. It should be noted that given the current weight of opinion, actions that are sporadic or isolated in nature would not suffice. Additionally, because the issue is the law applicable to international armed conflict, the relevant actions must be attributable to a state.26 Returning to the topic at hand, and quite aside from ad bellum issues, humanitarian law principles apply whenever computer network attacks that can be ascribed to a State are more than merely sporadic and isolated incidents and are either intended to cause injury, death, damage or destruction (and analogous effects), or such consequences are foreseeable. This is so even though classic armed force is not being employed. By this standard, a computer network attack on a large airport’s air traffic control system by agents of another State would implicate humanitarian law. So too would an attack intended to destroy oil pipelines by surging oil through them after taking control of computers governing flow,27 causing the meltdown of a nuclear reactor by manipulation of its computerized nerve centre, or using computers to trigger a release of toxic chemicals from production and storage facilities. On the other hand, humanitarian law would not pertain to disrupting a university intranet, downloading financial records, shutting down Internet access temporarily or conducting cyber espionage, because, even if part of a regular campaign of similar acts, the foreseeable consequences would not include injury, death, damage or destruction. It should be apparent that, given advances in methods and means of warfare, especially information warfare, it is not sufficient to apply an actor-based threshold for application of humanitarian law; instead, a consequence-based one is more appropriate. This is hardly a jurisprudential epiphany. No one would deny, for instance, that biological or chemical warfare (which does not involve delivery by a kinetic weapon) is subject to humanitarian law. A consequence-based threshold is also supported by the fact that once armed conflict has commenced (and except for prohibitions relevant to particular weapons), the means by which injury, death, damage or destruction are produced have no bearing on the legality of the causal 26

On the topic of attribution of an act to a State, see the Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the International Law Commission at its fiftythird session (2001), Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), Chap. IV.E.1. 27 This possibility was described in President’s Commission on Critical Infrastructure Protection, Critical Foundations: Protecting America’s Infrastructures, October 1997, at A-46.

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act. Intentionally targeting a civilian or other protected persons or objects is unlawful irrespective of the method or means used. Starvation, suffocation, beating, shooting, bombing, even cyber attack—all are subject to humanitarian law owing to the fact that a particular consequence results. That this is so counters any assertion that, standing alone, cyber attacks are not subject to humanitarian law because they are not ‘‘armed’’ force. On the contrary, they may or may not be, depending on their nature and likely consequences.

9.2 Computer Network Attack Targets As has been discussed, computer network attacks are subject to humanitarian law if they are part and parcel of either a classic conflict or a ‘‘cyber war’’ in which injury, death, damage or destruction are intended or foreseeable. This being so, it is necessary to consider the targets against which computer network attacks may be directed. A useful starting point is to frame the conduct that is subject to the prescriptive norms governing targeting. Because most relevant Additional Protocol I provisions articulate standards applicable to Parties and non-Parties (as a restatement of binding customary law) alike, that instrument serves as an apt point of departure.28 Article 48, the basic rule governing the protection of the civilian population, provides that ‘‘Parties to the conflict… shall direct their operations only against military objectives.’’29 At face value, Article 48 would seem to rule 28

Although not party to Protocol I, the US considers many of its provisions to be declaratory of customary international law. For a non-official, but generally considered authoritative, delineation of those viewed as declaratory, see Matheson 1987, p. 419. See also International and Operational Law Division, Office of the Judge Advocate General, Department of the Air Force, Operations Law Deployment Deskbook, tab 12, no date, and comments by the then State Department Legal Advisor Abraham D. Soafer in Soafer 1988, p. 784. 29 Additional Protocol I, op. cit. (note 10), Article 48. The centrality of the principle to humanitarian law is noted in the ICRC Commentary thereon: The basic rule of protection and distinction is confirmed in this article. It is the foundation on which the codification of the laws and customs of war rests: the civilian population and civilian objects must be respected and protected in armed conflict, and for this purpose they must be distinguished from combatants and military objectives. The entire system established in The Hague in 1899 and 1907 and in Geneva from 1864 to 1977 is founded on this rule of customary law. It was already implicitly recognized in the St. Petersburg Declaration of 1868 renouncing the use of certain projectiles, which had stated that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’. Admittedly this was concerned with preventing superfluous injury or unnecessary suffering to combatants by prohibiting the use of all explosive projectiles under 400 grammes in weight, and was not aimed at specifically protecting the civilian population. However, in this instrument the immunity of the population was confirmed indirectly…In the Hague Conventions of 1899 and 1907, like the Geneva Conventions of 1929 and 1949, the rule of protection is deemed to be generally accepted as a rule of law, though at that time it was not considered necessary to formulate

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out any military operation, including CNA, directed against other than purely military objectives. In fact, it does not. In subsequent articles, proscriptions are routinely expressed in terms of ‘‘attacks.’’ Thus, ‘‘the civilian population as such, as well as individual civilians, shall not be the object of attack’’30; ‘‘civilian objects shall not be the object of attack’’31; ‘‘indiscriminate attacks are forbidden’’32; ‘‘attacks shall be limited strictly to military objectives’’33; and so forth. The term is expressly defined in Article 49: ‘‘‘Attacks’ means acts of violence against the adversary, whether in offence or in defence.’’ As a general matter then, the prohibition is not so much on targeting non-military objectives as it is on attacking them, specifically through the use of violence. This interpretation is supported by the text of Article 51, which sets forth the general principle that the ‘‘civilian population and individual civilians shall enjoy general protection against dangers arising from military operations’’ and prohibits ‘‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’’,34 as well as the Commentary on Article 48, which notes that ‘‘the word ‘operation’ should be understood in the context of the whole of the section; it refers to military operations during which violence is used.’’35 In light of this interpretation, does computer network attack fall outside the ambit of ‘‘attacks’’ because it does not employ violence? No, and for precisely the same reason that armed attacks can include cyber attacks. ‘‘Attacks’’ is a term of prescriptive shorthand intended to address specific consequences. It is clear that what the relevant provisions hope to accomplish is shielding protected individuals from injury or death and protected objects from damage or destruction. To the extent that the term ‘‘violence’’ is explicative, it must be considered in the sense of violent consequences rather than violent acts. Significant human physical or mental suffering36 is logically included in the concept of injury; permanent loss of assets, for instance money, stock, etc., directly transferable into tangible property likewise constitutes damage or destruction. The point is that inconvenience, harassment or mere diminishment in quality of life does not suffice; human suffering is the requisite criterion. As an example, a major disruption of the stock

(Footnote 29 continued) it word for word in the texts themselves. The rule is included in this Protocol to verify the distinction required and the limitation of attacks on military objectives. Additional Protocols: Commentary, op. cit. (note 21), paras 1863–64. 30 Additional Protocol I, op. cit. (note 10), Article 51(2). 31 Ibid., Article 52(1). 32 Ibid., Article 51(4). 33 Ibid., Article 52(2). 34 Ibid., Articles 51(1) and 51(2) (emphasis added). 35 Additional Protocols: Commentary, op. cit. (note 21), para 1875 (emphasis added). 36 It is reasonable to include human suffering in the connotation, since the Protocol prohibits causing terror, which is also a psychological condition. Additional Protocol I, op. cit. (note 10), Article 51(2).

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market or banking system might effectively collapse the economy and result in widespread unemployment, hunger, mental anguish, etc., a reality tragically demonstrated during the Depression of the 1930s. If it did cause this level of suffering, the CNA would constitute an attack within the meaning of that term in humanitarian law. Other articles within the section sustain this reading. For instance, the rules of proportionality speak of ‘‘loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’’,37 those relating to protection of the environment refer to ‘‘widespread, long-term, and severe damage’’,38 and the protection of dams, dykes and nuclear electrical generating stations is framed in terms of ‘‘severe losses among the civilian population’’39 which ‘‘would be excessive in relation to the concrete and direct military advantage anticipated.’’ Furthermore, during negotiations on Additional Protocol I, the issue of whether laying landmines constituted an attack arose. Most agreed that it did because ‘‘there is an attack whenever a person is directly endangered by a mine laid.’’40 By analogy, a computer network attack which foreseeably endangers protected persons or property would amount to an attack. Let us return now to Article 48. In the context of computer network attack, and as a general rule (various other specific prohibitions are discussed below), the article would ban those CNA operations directed against non-military objectives that are intended to, or would foreseeably, cause injury, death, damage or destruction. Unless otherwise prohibited by specific provisions of humanitarian law, CNA operations unlikely to result in the aforementioned consequences are permissible against non-military objectives, such as the population.41 As a result of this distinction, the need to carefully assess whether or not an information warfare operation is or is not an ‘‘attack’’ is greatly heightened. In the past, analysis of this matter approximated a res ipsa loquitor approach. However, CNA is much more ambiguous than traditional military operations, thereby demanding a more challenging consequence-based consideration. While CNA does dramatically expand the possibilities for ‘‘targeting’’ (but not attacking) non-military objectives, it is unfair to characterize this as a weakening of the prescriptive architecture. Instead, it simply represents an expansion of permissible methods and means resulting from advances in technology; existing norms remain intact. Recall, for example, that psychological operations directed against the civilian population that cause no physical harm are entirely permissible, so long as they are not intended to terrorize.42 This is so whether the

37

Ibid., Articles 51(5)(b); 57(2)(a)(iii); 57(2)(b). Ibid., Articles 35(3) and 55(1). 39 Ibid., Article 56(1). 40 Additional Protocols: Commentary, op. cit. (note 21), para 1881. 41 But see Haslam 2000, p. 173. 42 Indeed, the US has even developed doctrine for the conduct of psychological operations. Joint Chiefs of Staff, Joint Doctrine for Psychological Operations, Joint Publication 3–53, 10 July 38

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motivation for the operations is military in nature or not. Nevertheless, although the objective regime is a constant, the advent of CNA reveals a normative lacuna that, unless filled, will inevitably result in an expansion of war’s impact on the civilian population. Assuming that a CNA operation is an ‘‘attack,’’ what can be targeted? Analytically, potential targets can be classified into three broad categories: (1) combatants and military objectives; (2) civilians and civilian objects; and (3) dual-use objects. Moreover, particular types of potential targets enjoy specific protection. It is useful to address each grouping separately.

9.2.1 Combatants and Military Objectives Combatants and military objectives are by nature valid targets and may be directly attacked as long as the method and means used, as discussed in the next section, are consistent with humanitarian law restrictions. Those who plan or decide on attacks have an affirmative duty to ‘‘do everything feasible’’ to verify that intended targets are legitimate, i.e. that they do not enjoy immunity from attack under humanitarian law.43 A combatant is a member of the armed forces other than medical personnel and chaplains; armed forces include ‘‘all organized armed forces, groups and units which are under a command responsible to [a Party to the conflict] for the conduct of its subordinates… [They must] be subject to an internal disciplinary system

(Footnote 42 continued) 1996. Actions intended to terrorize the civilian population are prohibited by Additional Protocol I, op. cit. (note 10), Article 51(2). 43 Additional Protocol I, op. cit. (note 10), Article 57(2)(a)(i). The commentary on this provision further explains the obligation. Admittedly, those who plan or decide upon such an attack will base their decision on information given them, and they cannot be expected to have personal knowledge of the objective to be attacked and of its exact nature. However, this does not detract from their responsibility, and in case of doubt, even if there is only slight doubt, they must call for additional information and if need be give orders for further reconnaissance to those of their subordinates and those responsible for supportive weapons (particularly artillery and air force) whose business this is, and who are answerable to them. In the case of longdistance attacks, information will be obtained in particular from aerial reconnaissance and from intelligence units, which will of course attempt to gather information about enemy military objectives by various means. The evaluation of the information obtained must include a serious check of its accuracy, particularly as there is nothing to prevent the enemy from setting up fake military objectives or camouflaging the true ones. In fact it is clear that no responsible military commander would wish to attack objectives which were of no military interest. In this respect humanitarian interests and military interests coincide. Additional Protocols: Commentary, op. cit. (note 21), para 2195.

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which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.’’44 Directing computer network attacks against combatants, for instance by causing a military air traffic control system to transmit false navigational information in order to cause a military troop transport to crash, is clearly permissible. Military objectives are defined in Article 52 of Additional Protocol I as ‘‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite advantage.’’45 Military equipment and facilities, other than medical and religious items, are clearly military objectives, and thereby subject to direct computer network attack. However, determining which objects are military objectives beyond these obvious exemplars is often difficult.46 The problem lies in ascertaining the required nexus between the object to be attacked and military operations. The crux of the dilemma is interpretation of the terms ‘‘effective’’ and ‘‘definite.’’ Some, such as the International Committee of the Red Cross (ICRC), define them very narrowly. According to the ICRC Commentary on the Protocol, effective contribution includes objects ‘‘directly used by the armed forces’’ (e.g. weapons and equipment), locations of ‘‘special importance for military operations’’ (e.g. bridges), and objects intended for use or being used for military purposes.47 As to ‘‘definite military advantage’’ the Commentary excludes attacks that offer only a ‘‘potential or indeterminate’’ advantage.48 By contrast, the US, which does not dispute the wording of the definition, would include economic targets that ‘‘indirectly but effectively support and sustain the enemy’s warfighting capability’’, a particularly expansive interpretation.49 This difference has interesting implications for computer network attack. Can a banking system be attacked because wealth underpins a military’s sustainability? What about the ministry responsible for taxation? The stock market? Are attacks on brokerage firms acceptable because they will undermine willingness to invest in the economy? If a country disproportionately relies on a particular industry to 44

Additional Protocol I, op. cit. (note 10), Article 43(1)–(2). Ibid., Article 52(2). 46 Indeed, the Commentary states that: ‘‘The text of this para certainly constitutes a valuable guide, but it will not always be easy to interpret, particularly for those who have to decide about an attack and on the means and methods to be used.’’ Additional Protocols: Commentary, op. cit. (note 21), para 2016. 47 Ibid., paras 2020–23. 48 Ibid., para 2024. 49 US Navy/Marine Corps/Coast Guard, The Commander’s Handbook on the Law of Naval Operations (NWP 1–14M, MCWP 5-2.1, COMDTPUB P5800.7), para 8.1.1 (1995), reprinted as an annotated version in US Naval War College’s International Law Studies series, vol. 73 (hereinafter Handbook). This assertion is labelled a ‘‘statement of customary international law.’’ The Handbook cites General Counsel, Department of Defense, Letter of 22 September 1972, reprinted in American Journal of International Law, vol. 67, 1973, p. 123, as the basis for this characterization. 45

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provide export income (e.g. oil), can computer network attack be used to disrupt production and distribution? The issue of striking economic targets is a particularly acute one because the operation of most is computer-intense in nature and hence very appealing to information warfare targeteers. The threshold issue, to revert to the discussion above, is whether or not the attack would cause injury, death, damage or destruction. Once this determination is made, the differing interpretations of military objective would come into play, in all likelihood leading to disparate results on the legitimacy of striking the target. On the other hand, if the operation were designed to cause, for example, mere inconvenience, it would not rise to the level of an attack and would thus be permissible regardless of the target’s nexus, or lack thereof, to military operations. For instance, if the Serbian State television station had been targeted by CNA rather than kinetic weapons during NATO strikes on Belgrade in April 1999, there might well have been no consequent injury, death, damage or destruction. In that circumstance, criticism on the basis that a civilian target had been hit would probably have fallen on deaf ears and thereby avoided the resulting negative publicity, as well as the litigation in the European Court of Human Rights.50

9.2.2 Civilians and Civilian Objects Civilians are those persons who are not considered combatants,51 whereas a civilian object is one that is not a military objective.52 The prohibition on attacking civilians and civilian objects is nearly absolute. Specifically, Additional Protocol I stipulates: Article 51(2) ‘‘The civilian population as such, as well as individual civilians shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’’ Article 52 ‘‘Civilian objects shall not be the object of attack or of reprisals.’’53

Doubts as to the character of an object or individual are to be resolved in favour of a finding of civilian status.54 Again, in the case of computer network attack, the 50

Bankovic and Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, ECHR, App. No. 52207/99 (2001). In its decision of 12 December 2001, the Court found the application inadmissible. 51 Additional Protocol I, op. cit. (note 10), Article 50(1). 52 Ibid., Article 52(1). 53 Ibid., Articles 51(2) and 52. The Statute for the International Criminal Court also prohibits the direct targeting of civilians or civilian objects. Rome Statute for the International Criminal Court, Article 8(2)(b)(i) and (ii), UN Doc. A/Conf. 183/9, July 17, 1998, at Annex II (hereinafter Rome Statute), reprinted in International Legal Materials, vol. 37, p. 999 (1998) and Bassiouni 1999, p. 39. 54 Ibid., Articles 50(1) (for civilians) and 52(3) (for civilian objects).

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threshold question is whether or not the attack is intended to, or foreseeably will, cause injury, death, damage or destruction; if so, the prohibitions set forth earlier, which undeniably restate existing customary law, apply. Unfortunately, the norms, albeit clear at first sight, are subject to interpretative difficulties. The differing standards for distinguishing civilian objects from military objectives have already been highlighted. Similar disparities exist with regard to when a civilian may be attacked. Additional Protocol I allows for this possibility only in the case of a civilian taking a ‘‘direct part in hostilities’’, a standard described in the Commentary as ‘‘acts of war which by their nature or purpose are likely to cause actual harm to the personnel or equipment of the enemy armed forces.’’55 This is the illegal combatant problem. Some would limit civilian immunity even more severely by, for instance, characterizing mission-essential civilians working at a base during hostilities, though not engaged directly in acts of war, as legitimate targets.56 In the context of information operations, the civilian issue is an important one. Some countries have elected to contract out information warfare functions, whether those functions involve the maintenance of assets or the conduct of operations. Moreover, computer network attack is a function that may be tasked to government agencies other than the military. In the event of civilian contractors or nonmilitary personnel being in a support role that is essential to the conduct of operations, for instance maintaining CNA equipment, by the latter interpretation they would be directly targetable. Further, because they are valid targets, any injury caused them would not be calculated when assessing whether an attack is proportional (see discussion above). On the other hand, narrowly applying the ‘‘direct part in hostilities’’ standard would preserve the protection they enjoy as civilians, though if captured they would be entitled to prisoner-of-war status as persons ‘‘accompanying the armed forces.’’57 Should civilians engage in a computer network attack themselves, the problem becomes more complex. If the CNA results, or foreseeably could result, in injury, death, damage or destruction, then the ‘‘perpetrators’’ would be illegal combatants. This status attaches because they have taken a direct part in hostilities without complying with the criteria for characterization as a combatant. As illegal combatants, they may be directly attacked, any injury suffered by them would be irrelevant in a proportionality calculation, and in the event of their capture they would not be entitled to prisoner-of-war status. Conversely, if the civilians involved were conducting computer network operations that did not reach the level of ‘‘attacks’’, they would not be illegal combatants because they would have committed no ‘‘acts of war that by their nature or purpose are likely to cause actual harm to the personnel or equipment of the enemy armed forces.’’ Their civilian

55

Ibid., Article 51(3); Additional Protocols: Commentary, op. cit. (note 21), para 1944. Letter from DAJA-IA to Counselor for Defense Research and Engineering (Economics), Embassy of the Federal Republic of Germany (22 January 1988), cited in Parks 1992, p. 1. 57 GC III, op. cit. (note 14), Article 4(4). 56

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status and its corresponding protections would remain intact. Nevertheless, as with support personnel, if attached to a military unit and accompanying that unit these civilians would be classed as prisoners of war.58 Of course, the facility and equipment being used to conduct the operations might well be valid military objectives and, as a result, be subject to attack; but the operators themselves could not be directly attacked. As should be apparent, the use of civilians, whether contractors or government employees, is fraught with legal pitfalls. Clearly, a prudent approach would be to employ military personnel for information warfare purposes.

9.2.3 Dual-Use Objects A dual-use object is one that serves both civilian and military purposes. Examples of common dual-use objects (or objectives) include airports, rail lines, electrical systems, communications systems, factories that produce items for both the military and the civilian population and satellites such as INTELSAT, EUROSAT and ARABSAT, etc. If an object is being used for military purposes, it is a military objective vulnerable to attack, including computer network attack. This is true even if the military purposes are secondary to the civilian ones. Several caveats are in order. First, whether or not an object is a military objective may turn on whether the narrow or broad definition of the term, a matter discussed above, is used. Second, whether an object is dual-use, and therefore a military objective, will depend on the nature of the specific conflict. An airfield may be utilized for logistics purposes in one conflict, but serve no military function in another. Third, an object that has the potential for military usage, but is currently used solely for civilian purposes, is a military objective if the likelihood of military use is reasonable and not remote in the context of the particular conflict under way. Finally, dual-use objects must be carefully measured against the requirements of discrimination and proportionality, discussed above, because by definition an attack thereon risks collateral damage and incidental injury to civilians or civilian objects.

9.2.4 Specifically Protected Objects In addition to the general rules regarding the protection of the civilian population, certain objects enjoy specific protection. A controversial category of specially protected objects is dams, dykes and nuclear electrical generating stations. Because of their reliance on computers and computer networks, such facilities are especially vulnerable to CNA. Article 56 of Additional Protocol I, a provision 58

Ibid.

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opposed by the US, forbids an attack on these facilities if the attack might ‘‘cause the release of dangerous forces (e.g. water or radioactivity) and consequent severe losses among the civilian population.’’59 This prohibition applies even if they are military objectives. Interestingly, CNA offers a fairly reliable means of neutralizing such facilities without risking the release of dangerous forces, a difficult task when using kinetic weapons. Conducting attacks that starve the civilian population or otherwise deny it ‘‘indispensable objects’’,60 even if enemy armed forces are the intended ‘‘victims’’, is prohibited.61 Indispensable objects include such items as foodstuffs, crops, livestock or drinking water. Under this restriction, computer network attacks against, for instance, a food storage and distribution system or a water treatment plant serving the civilian population would not be permissible even if military forces also rely on them. Additional Protocol I furthermore prohibits military operations likely to cause widespread, long-term and severe damage to the environment,62 although the US does not recognize the provision as a restatement of customary law. Computer network attacks might conceivably cause such devastation. An attack on a nuclear reactor could result in a meltdown of its core and consequent release of radioactivity. Similarly, CNA could be used to release chemicals from a storage or production facility or rupture a major oil pipeline. Many other possibilities for causing environmental damage through CNA exist. It is important to note that the prohibition applies regardless of whether or not the attack is targeted against a valid military objective and even if it complies with the principle of

59

Additional Protocol I, op. cit. (note 10), Article 56(1). This prohibition extends to attacks on other military objectives in their vicinity if the attack might cause such a release. There are exceptions to the general prohibition of the article. 2. The special protection against attack provided by para 1 shall cease: (a) for a dam or a dyke only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support; (b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support; (c) for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.

Ibid., Article 56(2). Ibid., Article 54(2). See also Rome Statute, op. cit. (note 53), Article 8(2)(b)(xxv). 61 Additional Protocols: Commentary, op. cit. (note 21), para 2110. However, the prohibition does not apply to objects used solely for the sustenance of enemy forces or ‘‘in direct support of military action.’’ Additional Protocol I, op. cit. (note 10), Article 54(3). An example of the latter would be an agricultural area used for cover by military forces. 62 Ibid., Articles 35(3) and 55. See also Rome Statute, op. cit. (note 53), Article 8(2)(b)(iv). On the issue of environmental damage during armed conflict, see Austin and Bruch 2000; Schmitt 1997, pp. 1–109 (Chap. 8 in this book); Grunawalt et al. 1996. 60

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proportionality. Once the requisite quantum of damage is expected to occur, the operation is prohibited. Finally, it must be noted that there are a number of other objects, persons and activities that enjoy special protected status and are susceptible to computer network attack, but do not present unique CNA opportunities or challenges. These should be handled during the targeting cycle in the same manner as they would be in the planning of kinetic attacks.63 In addition, there are limitations on striking certain objects or individuals in reprisal, including reprisals by computer network attack.64

63

For example, military and civilian medical units and supplies are exempt from attack unless being used for military purposes. Additional Protocol I, op. cit. (note 10), Article 12. There are specific criteria for the extension of protection to civilian facilities. Ibid., Article 12(2). See also Rome Statute, op. cit. (note 53), Article 8(2)(b)(ix) and (xxv). Medical transport enjoys similar protection. Additional Protocol I, op. cit., Articles 21–31. The extent of the protection varies, depending on the category of transportation and its location. Other objects enjoying protection include cultural objects, places of worship and civil defence shelters, facilities and material. Ibid., Articles 53 and 62(3). In addition, humanitarian relief activities must not be interfered with. Ibid., Article 70. Special provisions as to when such operations are entitled to the protection apply. Rome Statute, op. cit. (note 53), Article 8(2)(b)(iii). By these prohibitions, for example, a computer network attack to alter blood type information in a hospital’s data bank, deny power to a bomb shelter or œmisroute humanitarian relief supplies would all be unlawful. Of course, misuse of protected items or locations for military purposes renders them valid military objectives that may be attacked. 64 Reprisals are otherwise unlawful actions taken during armed conflict in response to an adversary’s own unlawful conduct. They must be designed solely to cause the adversary to act lawfully, be preceded by a warning (if feasible), be proportionate to the adversary’s violation, and cease as soon as the other side complies with the legal limitations on its conduct. The right to conduct reprisals has been severely restricted in treaty law, much of which expresses customary law. There are specific prohibitions on reprisals conducted against civilians; prisoners of war; the wounded, sick and shipwrecked; medical and religious personnel and their equipment; protected buildings, equipment and vessels; civilian objects; cultural objects; objects indispensable for the survival of the civilian population; works containing dangerous forces; and the environment. GC I, op. cit. (note 14), Article 46; GC II, op. cit. (note 14), Article 47; GC III, op. cit. (note 14), Article 13; GC IV, op. cit. (note 14), Article 33; Additional Protocol I, op. cit. (note 10), Articles 20, 51–56. In fairness, it should be acknowledged that certain countries argue that the Additional Protocol I restrictions on reprisals fail to reflect customary law. The US, while accepting that most reprisals against civilians would be inappropriate (and illegitimate), asserts that the absolute prohibition thereon ‘‘removes a significant deterrent that presently protects civilians and other war victims on all sides of the conflict.’’ Soafer 1988, p. 470. For the official US position on reprisals against civilians, see Handbook, op. cit. (note 49), paras 6.2.3 and 6.2.3.1–3. The UK issued a reservation on precisely the same point when it became party to the Protocol. Reprinted on the International Committee of the Red Cross Treaty Database website, http://www.icrc.org/ ihl. For these and other countries that have adopted this position, reprisatory computer network attacks are issues of policy, not law.

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9.3 Limits on Striking Legitimate Targets The core prescriptions on striking legitimate targets are based on the principle of discrimination.65 It is this principle which most clearly expresses humanitarian law’s balancing of State-centric interests in resorting to force against the more broadly based human interest in shielding non-participants from the effects of what is, at best, an unfortunate necessity. The discrimination requirement is twofold. Applied to weapons, it prohibits the use of those that are incapable of distinguishing between combatants and military objectives on the one hand and civilians, civilian objects and other protected entities on the other. Applied to tactics and the use of weapons, it requires that an effort be made to distinguish between these two categories, civilian and military, when conducting military operations. Additional Protocol I articulates this difference in Article 51(4): Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Subparagraph (a) refers to indiscriminate use, whereas (b) and (c) describe indiscriminate weapons or tactics. The indiscriminate use aspect of discrimination consists of three related components—distinction, proportionality, and minimizing collateral damage and incidental injury.66

9.3.1 Indiscriminate Weapons Computer network attacks are mounted by a weapon system consisting of a computer, a computer code and a means by which that code is transmitted. Obviously, the computer itself is not indiscriminate for it can very discreetly send code to particular computers and networks. The sending of e-mail is an apt example. By contrast, code can be written that is very, perhaps intentionally, indiscriminate. The classic example is a virus that passes, free of any control by its originator, from computer to computer. Because the code, even if it is an

65

For a comprehensive review of the principle, see Rosenblad 1979. This typology is adopted from Greenwood 1998, p. 185; also published in US Naval War College International Law Studies, vol. 71, 1998. By contrast, the US Air Force employs the categories of military necessity, humanity and chivalry, with proportionality folded into necessity, whereas the US Navy uses necessity, humanity and chivalry. Compare Department of the Air Force, International Law: The Conduct of Armed Conflict and Air Operations, AF Pamphlet 110-31, 1976, at 1-5–1-6 with Handbook, op. cit. (note 49), para 5-1. 66

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uncontrollable virus, can be targeted at particular military objectives, it is not indiscriminate on the ground that it cannot be directed. However, such code may be indiscriminate in that its effects cannot be limited. In many cases, once a viral code is launched against a target computer or network, the attacker will have no way to limit its subsequent retransmission. This may be true even in a closed network, for the virus could, for instance, be transferred into it by diskette. Simply put, a malicious code likely to be uncontrollably spread throughout civilian systems is prohibited as an indiscriminate weapon. Care must be taken not to overstate the restriction. Note that Article 51(4) cites ‘‘methods and means of combat.’’ A means of combat is defined in the Commentary on Additional Protocol I as a ‘‘weapon’’, whereas a method of combat is the way in which a weapon is used.67 The plain meaning of ‘‘weapon’’ is something that can be used to attack an adversary. From the above analysis of the humanitarian law term ‘‘attacks’’ it follows that computer code is part of a weapon system only when it can cause the effects encompassed by that term—injury, death, damage and destruction (including related effects such as severe mental suffering, terror, etc.). In the event it cannot, it is not part of a weapon system, and thus would not be prohibited, at least not on the ground that it is indiscriminate.

9.3.2 Distinction The principle of distinction, unquestionably part of customary humanitarian law, is set forth in Additional Protocol I, Article 48: ‘‘[T]he Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.’’ Whereas the prohibition of direct attacks on civilians rendered a specific category of potential targets off-limits, the distinction requirement extends protection to cases in which an attack may not be directed against civilian or civilian objectives specifically, but in which there is a high likelihood of striking them nonetheless. An example would be firing a weapon blindly, although that weapon is capable of being aimed. This is a particularly relevant prohibition in the context of computer network attack. For example, it would embrace situations where it is possible to discreetly target a military objective through a particular means of CNA, but instead a broad attack likely to affect civilian systems is launched. Such an attack would be analogous to the Iraqi SCUD missile attacks against Saudi and Israeli population centres during the 1990–1991 Gulf War.68 The SCUD is not an inherently indiscriminate weapon. Indeed, it is easily capable of being aimed with sufficient accuracy against, for

67

Additional Protocols: A Commentary, op. cit. (note 21), para 1957. On the attacks, see US Department of Defense 1992, p. 63, reprinted in 31 International Legal Materials, 1992, p. 612.

68

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instance, military formations in the desert. However, the use of SCUDS against population centres was indiscriminate even if the Iraqi intent was to strike military objectives situated therein; the likelihood of striking protected persons and objects so outweighed that of hitting legitimate targets that the use was inadmissible. Given the interconnection of computer systems today, computer network attacks could readily be launched in an analogous fashion.

9.3.3 Proportionality Scienter distinguishes the principle of proportionality from that of distinction. Distinction limits direct attacks on protected persons or objects and those in which there is culpable disregard for civilian consequences. Conversely, proportionality governs those situations in which harm to protected persons or objects is the foreseeable consequence of an attack, but not its intended purpose. The principle is most often violated (sometimes in an unintended but culpably negligent fashion) as a result of: (1) lack of sufficient knowledge or understanding of what is being attacked; (2) an inability to surgically craft the amount of ‘‘force’’ being applied against a target; and (3) the inability to ensure the weapon strikes the intended target with complete accuracy.69 All three pitfalls could be encountered in the context of computer network attack. As set forth in Additional Protocol I, an attack is indiscriminate as violating the principle of proportionality when it ‘‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’’70 A concrete and direct advantage is ‘‘substantial and relatively close[;] … advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.’’71 Moreover, the advantage calculated is that resulting from the overall operation, not the individual attack itself.72 Basically, the principle of proportionality calls for striking a balance––a task that is especially difficult to accomplish because differing entities (suffering and damage v. military advantage) are being weighed against each other without a

69

An expanded discussion is in Schmitt 1998, p. 1051, pp. 1080–1081. Additional Protocol I, op. cit. (note 10), Articles 51(5)(a) and 57(2)(a)(iii) and (b). On proportionality, see Fenrick 1982, p. 91; Gardam 1993, p. 391. 71 Additional Protocols: A Commentary, op. cit. (note 21), para 2209. 72 A number of understandings/declarations/reservations have been issued on this point by parties to the protocol. For instance, the UK made the following reservation when ratifying Additional Protocol I in 1998: ‘‘In the view of the UK, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.’’ ICRC website, op. cit. (note 64). 70

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common system of valuation.73 Complicating matters is the fact that the answers to these and similar questions, assuming that there are any ‘‘right’’ answers, are contextual because the military advantage resulting from an attack always depends on the state of hostilities at the time.74 Acknowledging the difficulty of putting principle into practice, the Commentary on Additional Protocol I notes that ‘‘[p]utting these provisions into practice… will require complete good faith on the part of the belligerents, as well as the desire to conform with the general principle of respect for the civilian population.’’75 Further complicating matters is the issue of knock-on effects, i.e. those effects not directly and immediately caused by the attack, but nevertheless the product thereof––it is the problem of the effects caused by the effects of an attack. The most cited example is that of the attack on the Iraqi electrical grid during the 1990–1991 Gulf War. Although it successfully disrupted Iraqi command and control, the attack also denied electricity to the civilian population (a ‘‘first tier’’ effect), thereby affecting hospitals, refrigeration, emergency response, etc. Similarly, when NATO struck at Yugoslavia’s electrical supply network during Operation ‘‘Allied Force’’, one consequence was to shut down drinking water pumping stations.76 Such attacks gave rise, as a knock-on effect, to ‘‘second-tier’’ suffering of the population. Obviously, precisely the same effects could have resulted had the attacks been conducted through CNA. Indeed, the problem of knock on effects looms much larger in computer network attacks than in kinetic attacks owing to the interconnectivity of computers, particularly between military and civilian systems. Knock-on effects have a bearing on proportionality analysis because they must be considered when balancing collateral damage and incidental injury against military advantage. Unfortunately, when caused by computer network attack such damage and injury, whether direct or indirect, are difficult to assess without knowing how the computer systems involved function and to which other systems they are linked. Despite this obstacle, planners and decision-makers have an affirmative duty to attempt to avoid collateral damage and incidental injury whenever feasible, a duty that necessarily implies an effort to ascertain the damage or injury likely to result from an attack.77 Given the complexity of computer

73

For instance, how should civilian passenger lives be weighed against military aircraft in a computer network attack on an air traffic control system? How much human suffering is acceptable when shutting down an electrical grid that serves both military and civilian purposes? Can computer network attacks be conducted against telecommunications if they result in degrading emergency response services for the civilian population? 74 An additional problem is that the valuation process itself is complex. For instance, culture may determine the value placed on an item or the value of an item may shift over time. The issue of valuation paradigms is explored, in the context of environmental damage during armed conflict, more fully in Schmitt 1999b, p. 25. 75 Additional Protocols: Commentary, op. cit. (note 21), para 1978. 76 ‘‘NATO Denies Targeting Water Supplies’’, BBC World Online Network, 24 May 1999, http://www.news.bbc.co.uk/hi/english/world/europe/newsid_351000/351780.stm. 77 See generally Additional Protocol I, op. cit. (note 10), Article 57.

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network attack, the high probability of an impact on civilian systems and the relatively low understanding of its nature and effects on the part of those charged with ordering the attacks, computer experts will have to be available to assess potential collateral and incidental effects throughout the mission-planning process.78 Additionally, modelling and simulation, like those already conducted for nuclear weapons, would prove invaluable in identifying possible knock-on effects; to conduct them prior to the outbreak of hostilities––free from the fog, friction and pace of war––would be well advised.

9.3.4 Minimizing Collateral Damage and Incidental Injury The determination of proportionality establishes whether a military objective may be attacked at all. However, even if the selected target is legitimate and the planned attack thereon would be proportional, the attacker has an obligation to select that method or means of warfare likely to cause the least collateral damage and incidental injury, all other things being equal (such as risk to the forces conducting the attack, likelihood of success, weapons inventory, etc.).79 Furthermore, whenever a choice is possible between military objectives that can be attacked to achieve a desired result, the attack which carries the lowest risk of collateral damage and incidental injury must be chosen.80 The availability of computer network attack actually increases the options for minimizing collateral damage and incidental injury. Whereas in the past physical destruction may have been necessary to neutralize a target’s contribution to the enemy’s efforts, now it may be possible to simply ‘‘turn it off.’’ For instance, rather than bombing an airfield, air traffic control can be interrupted. The same is true of power production and distribution systems, communications, industrial plants, and so forth. Those who plan and execute such operations must still be concerned about collateral damage, incidental injury and knock-on effects (consider the Iraqi electric grid example above), but the risks associated with conducting classic kinetic warfare are mitigated significantly through CNA. Also, depending on the desired result, it may be possible to simply interrupt operation of the target facility. This tactic would be particularly attractive in the case of dual-use objectives. Consider an electrical grid. It might only be militarily necessary to shut the system down for a short period, for example immediately preceding and during an assault. The system could be brought back on track as soon as the pressing need for its suspension is over, thereby limiting the negative effects on the civilian population.

78

The US Joint Warfare Analysis Center, headquartered at Naval Surface warfare Center, Dahlgren, VA, is currently engaged in modelling foreign infrastructures and contingent outcomes. 79 Ibid., Article 57(2)(a). 80 Ibid., Article 57(3).

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Similarly, because targets are not physically damaged and thus do not need to be repaired or rebuilt, the civilian population’s return to normalcy at the end of the conflict would be facilitated.

9.3.5 Perfidy Although the core normative constraints on computer network attack derive from the principle of discrimination, several other related aspects of humanitarian law are brought into play by this new means of warfare. One is the prohibition on perfidy. Perfidy is the feigning of protected status in order to take advantage of an adversary. Examples include pretending to be wounded or sick or have noncombatant status, or surrendering and improperly displaying symbols that signify protected status, such as the red cross or red crescent. Perfidy is distinguished from ruses, which are acts intended to mislead an adversary and cause him to act recklessly, but which do not involve false claims of protected status. Ruses are lawful. Information warfare, including computer network attack, offers many opportunities for ruses and perfidy. This is because both techniques are intended to convey false information. For instance, lawful ruses might include transmitting false data, meant to be intercepted by an adversary, about troop deployment or movements. Alternatively, it might involve altering data in an adversary’s intelligence databases, sending messages to enemy headquarters purporting to be from subordinate units, or passing instructions to subordinate units that appear to be from their headquarters.81 All such activities would be perfectly legitimate. On the other hand, any action intended to mislead the enemy into believing that one’s forces enjoy protected status and thereby enable them to kill, injure or capture the enemy would be illegitimate.82 For instance, medical units and transports may use codes and signals established by the International Telecommunications Union, the International Civil Aviation Organization, and the International Maritime Consultative Organization to identify themselves.83 Falsely transmitting such codes/signals or, a more likely prospect in the computer network attack context, causing adversary systems to reflect receipt of such signals would be clear examples of perfidy. The US Department of Defense has also opined that using ‘‘computer ‘morphing’ techniques to create an image of the enemy’s chief of

81

Article 39 prohibits the use of the enemy’s military emblems, insignia or uniforms. This prohibition, which the US disagrees with except when it occurs during the actual engagement (see Handbook, op. cit. [note 49], para 12.1.1, fn 2), does not extend to the use of codes, passwords and the like. Bothe et al. 1982. However, Article 38 prohibits the misuse of protective signals. 82 Additional Protocol I, op. cit. (note 10), Article 37. See also Rome Statute, op. cit. (note 53), Article 8(2)(b)(vii) and (xi). Convention (IV) respecting the Laws and Customs of War on Land, October 18, 1907, annexed Regulations, Article 23(b)7, 36 Stat. 2277, 205 Consolidated Treaty Series 277, reprinted in Roberts and Guelff 2000, p. 73, prohibits treacherous killing. 83 Additional Protocol I, op. cit. (note 10), Annex, Article 11.

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state informing his troops that an armistice or cease-fire agreement had been signed’’ would be a war crime if false.

9.4 Conclusions By and large, existing humanitarian prescriptive norms suffice to maintain the protection civilians, civilian objects and other protected entities enjoy. However, certain novel aspects of CNA do pose new and sometimes troubling quandaries. The unease over the use of cyber warfare during NATOs campaign against Yugoslavia in 1999 is compelling evidence that the question of how humanitarian law bears on CNA remains unsettled.84 First, in order to apply extant norms to CNA, it is necessary to accept various interpretative premises. Most important are the consequence-based interpretations of ‘‘armed conflict’’ and ‘‘attack.’’ In the absence of such understandings, the applicability, and therefore adequacy, of present-day humanitarian law principles would come into question. Interestingly, consideration of computer network attack in the context of jus ad bellum also leads to consequence-based interpretation.85 Second, even if the parameters resulting from the suggested interpretations are accepted, normative lacunae exist. Most notably, attacks against civilians and civilian objects that do not injure, kill, damage or destroy (or otherwise produce the requisite level of suffering) are on the whole permissible. Given that kinetic attacks usually have such effects, civilians and civilian objects enjoy broad protection during conventional military operations. However, computer network attack, because it may not amount to an attack, opens up many possibilities for targeting otherwise protected persons and objects. The incentive for conducting such operations grows in relation to the extent to which the ‘‘war aims’’ of the party conducting the CNA are coercive in nature; the desire, for instance, to ‘‘turn out the lights’’ for a civilian population in order to motivate it to pressure its leadership to take, or desist from taking, a particular course of conduct (a step suggested by NATOs air commander during Operation ‘‘Allied Force’’) will grow as the means for doing so expand.86 The absence of kinetic effects almost invites usage.

84

For a description of hesitancy to use CNA during Operation ‘‘Allied Force’’, see Graham 1999, p. A1. 85 See Schmitt 1999a. 86 Consider the comment of Lieutenant General Michael Short, USAF, who commanded the air war during Operation ‘‘Allied Force’’: I felt that on the first night, the power should have gone off, and major bridges around Belgrade should have gone into the Danube, and the water should be cut off so that the next morning the leading citizens of Belgrade would have got up and asked, ‘Why are we doing this?’ and asked Milosevic the same question. Whitney 1999, p. A1.

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In humanitarian terms, this is to a great extent a negative reality. Some computer network attacks may not amount to an ‘‘attack’’—but some surely will. The mere fact that a target can be ‘‘attacked’’ in other than a kinetic fashion does not mean that humanitarian law norms are inapplicable. Civilians and civilian objects continue to enjoy protected status vis-à-vis those aspects of CNA that cause human suffering and physical damage. Moreover, even when conducting computer network attacks against military objectives, the principle of proportionality continues to safeguard civilians and civilian objects from injury and damage that is excessive in relation to the military advantage. For instance, turning off the electricity to a city to disrupt enemy command, control and communications may be acceptable if doing so does not cause excessive civilian suffering. However, if the operation is directed at other than a military objective, the sole issue is whether any harm caused reaches the level of an ‘‘attack.’’ If so, the CNA is prohibited. Third, and more encouraging, is the fact that CNA may make it possible to achieve desired military aims with less collateral damage and incidental injury than in traditional kinetic attacks. Indeed, military commanders will in certain cases be obligated to employ their cyber assets in lieu of kinetic weapons when collateral and incidental effects can be limited.87 That said, it will be critically important to carefully analyse the effects of such operations, particularly their knock-on effects, when assessing an attack’s compliance with the principle of proportionality. This will require planning, legal and computer experts to operate in concert throughout the targeting cycle.88 Finally, much as CNA challenges existing notions of ‘‘attack’’, it will also test traditional understanding of combatant status because of the use of typically civilian technology and know–how to conduct military operations via computer. Failure to strictly comply with the limitations on the participation of civilians in hostilities will inevitably lead to heightened endangerment of the civilian population and weaken humanitarian law norms. So the jury remains out. While humanitarian law in its present form generally suffices to safeguard those it seeks to protect from the effects of computer network attack, and even though it offers the promise of periodically enhancing such protection, significant prescriptive faultlines do exist. Therefore, as capabilities to conduct computer network attacks increase in terms of both sophistication and availability,

87 Additional Protocols: Commentary, op. cit. (note 21), para 1871, notes that ‘‘it is the duty of Parties to the conflict to have the means available to respect the rules of the Protocol. In any case, it is reprehensible for a Party possessing such means not to use them, and thus consciously prevent itself from making the required distinction.’’ 88 A typical Information Operations cell is illustrated in JP 3-13, op. cit. (note 2), at figure IV-4 and accompanying text. It includes an IO officer from J-3; representatives from J-2, 4, 5, 6, 7, supporting combatant commands, and service and functional components; a judge advocate; and public affairs, counterintelligence, civil affairs, targeting, special operations, special technical operations, electronic warfare, psychological operations, military deception and operations security experts.

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continued normative monitoring is absolutely essential. We must avoid losing sight of humanitarian principles, lest the possible in warfare supplant the permissible.

Abbreviations CNA

Computer network attacks

ICRC

International Committee of the Red Cross

NATO

North Atlantic Treaty Organization

EA

Electronic attack

References Adams J (1998) The next world war: computers are the weapons and the front line is everywhere. Simon & Schuster, New York Alberts DS, Garstka JJ, Stein FP (1999) Network centric warfare: developing and leveraging information superiority, 44ISR Cooperative Research Program, Washington D.C. Aldrich R (1996) The international legal implications of information warfare. Airpower J Fall 10(3):99 Aldrich R (2000) How do you know you are at war in the information age? Hous J Int L 22:223 Austin JE, Bruch CE (eds) (2000) The environmental consequences of war: legal, economic, and scientific perspectives. Cambridge University Press, Cambridge Bassiouni MC (1999) The statute of the international criminal court: a documentary history. Transnational Publishers, New York Bayles WJ (2001) The ethics of computer network attack. Parameters 31:44 Bothe M, Partsch KJ, Solf WA (1982) New rules for victims of armed conflicts. M. Nijhoff, The Hague Copeland TE (ed) (2000) The information revolution and national security, US Army College, Carlisle Barracks, PA D’Amato AA (1971) The concept of custom in international law. Cornell University Press, Ithaca De Lupis ID (2000) The law of war, 2nd edn. Cambridge University Press, Cambridge DeMulinen F (1987) Handbook on the law of war for armed forces, ICRC, Geneva Denning DE (1999) Information warfare and security. ACM Press, New York Fenrick WJ (1982) The rule of proportionality and protocol additional I in conventional warfare. Milit L Rev 98:91 Gardam JG (1993) Proportionality and force in international law. Am J Int L 87:391 Goldsmith JL, Posner ES (2000) Understanding the resemblance between modern and traditional customary international law. Va J Int L 40(2):639 Graham B (1999) Military grappling with rules for cyber warfare: questions prevented use on Yugoslavia. Washington Post, Washington D.C. 8 November Greenwood C (1995) Historical development and legal basis. In: Fleck Dieter (ed) The handbook of humanitarian law in armed conflict. Oxford University Press, Oxford Greenwood C (1998) The law of weaponry at the start of the new millennium. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the next millennium. Naval War College Press, Newport

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Grunawalt RJ, King JE, McClains RS (eds) (1996) Protection of the environment during armed conflict and other military operations. In: International law studies, vol. 69. US Naval War College, Newport, RI Haslam E (2000) Information warfare: technological changes and international law. J Confl Sec L 5(2):157, 173 Joint Chiefs of Staff (1997) National military strategy, http://www.dtic.mil/jcs/nms/strategy.htm Kelly P (2000) The twilight of customary international law. Va J Int L 40:449 Khalilzad Z, White J (eds) (1999) Strategic appraisal: the changing role of information warfare. RAND, Santa Monica Kuehl D (1999) Strategic information warfare: a concept, working paper 322. Strategic and Defence Studies Centre, Australian National University, Canberra Matheson MJ (1987) Session one: the US position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions. Am Univ J Int Law Pol 2:419 Metz S (2000) Armed conflict in the 21st century: the information revolution and post-modern warfare, US Army College, Carlisle Barracks, PA Owens WA, Offley E (2000) Lifting the fog of war. John Hopkins University Press, Baltimore Parks WH (1992) Air war and the law of war. A F L Rev 32:1 Roberts A, Guelff R (2000) Documents on the laws of war, 3rd edn. Oxford University Press, Oxford Rosenblad E (1979) International humanitarian law of armed conflict: some aspects of the principle of distinction and related problems, Henry Dunant Institute, Geneva Scales RH (ed) (2000) Future war anthology, US Army College, Carlisle Barracks Schindler D, Toman J (1988) The law of armed conflict. M. Nijhoff, Dordrecht Schmitt MN (1997) Green war: an assessment of the environmental law of international armed conflict. Yale J Int L 22:1–109 Schmitt MN (1998) Bellum Americanum: the US view of twenty-first century war and its possible implications for the law of armed conflict. Mich J Int L 19:1051, 1080–1081 Schmitt MN (1999a) Computer network attack and the use of force in international law: thoughts on a normative framework. Colum J Transnat L 37:885 Schmitt MN (1999b) War and the environment: fault lines in the prescriptive landscape. Archiv des Völkerrechts 37:25 Shulman M (1999) Discrimination in the laws of information warfare. Colum J Transnat L 37:939 Soafer AD (1988) Agora: the US decision not to ratify protocol I to the Geneva Conventions on the protection of war victims. Am J Int L 82:470, 784 US Department of Defense (1992) Conduct of the Persian Gulf War, title V report to congress Whitney CR (1999) The commander: air wars won’t stay risk-free, general says. The New York Times, NY, 18 June

Part IV

Protection and Enforcement

Chapter 10

The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis

Abstract Civilians who directly participate in hostilities lose their protection from attack for such time as they so participate. Additionally, they neither factor into proportionality calculations nor need be considered when taking ‘‘precautions in attack’’. The principle reflects both treaty and customary international law. In 2009, the International Committee of the Red Cross released the interpretive guidance on the notion of direct participation in hostilities. This chapter critically analyzes the guidance, pointing out both its strengths and weaknesses. In doing so, it addresses four key questions: (1) Who qualifies as a civilian? (2) What acts constitute ‘‘direct participation’’? (3) When does the notion apply? and (4) Do any further restrictions on attack attach to application of the rule?

Contents 10.1 Introduction................................................................................................................... 10.2 Civilians on the Battlefield .......................................................................................... 10.3 The Law Regarding Direct Participation..................................................................... 10.3.1 The Concept of ‘‘Civilian’’............................................................................. 10.3.2 The Concept of Direct Participation .............................................................. 10.3.3 Temporal Aspects of Direct Participation ..................................................... 10.4 Restraints on the Use of Force .................................................................................... 10.5 Concluding Thoughts ................................................................................................... References ...............................................................................................................................

514 515 518 521 529 537 541 544 545

Previously published in 1 Harv Nat Sec J 5 (2010).

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_10,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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10.1 Introduction In 2003, the International Committee of the Red Cross (ICRC), in cooperation with the T.M.C. Asser Institute, launched a major research effort to explore the concept of ‘‘direct participation by civilians in hostilities’’ (DPH Project).1 The goal was to provide greater clarity regarding the international humanitarian law (IHL) governing the loss of protection from attack when civilians involve themselves in armed conflict. Approximately forty eminent international law experts, including government attorneys, military officers, representatives of nongovernmental organizations (NGOs), and academics, participated in their personal capacity in a series of workshops held throughout 2008. In May 2009, the ICRC published the culmination of this process as the ‘‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.’’2 Although the planned output of the project was a consensus document, the proceedings proved highly contentious. As a result, the final product contains the express caveat that it is ‘‘an expression solely of the ICRC’s views.’’3 Aspects of the draft circulated to the experts were so controversial that a significant number of them asked that their names be deleted as participants, lest inclusion be misinterpreted as support for the Interpretive Guidance’s propositions. Eventually, the ICRC took the unusual step of publishing the Interpretive Guidance without identifying participants. This author participated throughout the project, including presentation of one of the foundational papers around which discussion entered.4 He was also one of those who withdrew his name upon reviewing the final draft. Disagreement with the interpretive guidance by dissenters varies in nature and degree. In fairness, there is much to recommend the document. The ICRC and the experts involved worked diligently to find common ground. It is a sophisticated work, reflective of the prodigious expertise resident in the ICRCs legal division, and one that clearly advances general understanding of the complex notion of ‘‘direct participation’’. Nevertheless, certain points of contention surfaced during the deliberations and in the debates generated by the final draft. This chapter examines these fault lines through the author’s own views. In doing so, it seeks to engage the broader international law community in the dialogue. A common theme pervades the criticisms set forth below. International humanitarian law seeks to infuse the violence of war with humanitarian considerations. However, it must remain sensitive to the interest of states in conducting

1

See Int’L Comm. of the Red Cross (ICRC), Overview of the ICRC’S Expert Process (20032008), http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/directparticipation–report_res/$File/ overview-of-the-icrcs-expert-process-icrc.pdf. 2 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (Nils Melzer ed., 2009), available at http://www.icrc.org/Web/ Eng/siteeng0.nsf/htmlall/p0990/$File/ICRC_002_0990.pdf [hereinafter IG]. 3 Id. at 6. 4 Subsequently published as Schmitt 2005.

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Introduction

515

warfare efficiently, for no state likely to find itself on the battlefield would accept norms that place its military success, or its survival, at serious risk. As a result, IHL represents a very delicate balance between two principles: military necessity and humanity. This dialectical relationship undergirds virtually all rules of IHL and must be borne in mind in any effort to elucidate them. It is in this regard that the interpretive guidance falters. Although it represents an important and valuable contribution to understanding the complex notion of direct participation in hostilities, on repeated occasions its interpretations skew the balance towards humanity. Unfortunately, such deviations from the generally accepted balance will likely cause states, which are ultimately responsible for application and enforcement of the law, to view the interpretive guidance skeptically.

10.2 Civilians on the Battlefield It is useful to understand the context in which the DPH project emerged. The presence on the battlefield of individuals who are not formally members of the belligerents’ armed forces is by no means a new phenomenon. Examples abound. Over 15,000 Hessian ‘‘auxiliaries’’ fought for Great Britain in the U.S. war of independence.5 During the French Revolution, the National Convention decreed that, ‘‘until such time as its enemies shall have been driven from the soil of the Republic, all Frenchmen are in permanent requisition for the services of the armies.’’6 Within the year, the size of the French forces reached 1.5 million men. The 1949 Geneva Convention on Prisoners of War (POW) later afforded prisonerof-war treatment to those ‘‘who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed unit.’’7 The convention also granted POW treatment to civilians who ‘‘accompany the armed forces without being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, and members of labor units or of services responsible for the welfare of the armed forces.’’8 Civilians enjoyed protection against direct attack; however, it was 5

Parks 2005. The article provides an excellent series of examples. Committee of Public Safety, Levee en Masse, 23 August 1793. 7 Convention (III) Relative to the Treatment of Prisoners of War Article 4A(6), 12 August 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]. Participants in such actions form a ‘‘levee en masse’’. 8 Id. Article 4A(4). Such treatment was not new. During the U.S. Civil War, Army General Orders No. 100, also known as the Lieber Code, provided that ‘‘[c]itizens who accompany an army for whatever purpose … if captured, may be made prisoners of war.’’ Francis Lieber, Instructions for the Government of Armies of the United States in the Field Article 50 (Gov’t Printing Office 1898) (1863) (officially published as U.S. War Dep’t, General Orders No. 100 (24 April 1863)). Hague Convention IV similarly provided that, ‘‘[i]ndividuals who follow an army without directly belonging to it, such as … contractors, who fall into the enemy’s hands … are entitled to be treated as prisoners of war.’’ Convention (IV) Respecting the Laws and Customs of 6

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well accepted by this time that if they took up arms they rendered themselves targetable. In a memorable event involving such individuals, over one-half of the American defenders at Wake Island were civilian contractors building a US naval base when the Japanese attacked in December 1941.9 Given the prevalence of resistance movements during the Second World War, the Prisoner of War Convention also extended POW treatment to resistance fighters meeting certain conditions.10 Twentieth-century state practice clearly demonstrates the acceptance of various categories of civilians on the battlefield and even, in limited and well-defined circumstances, their involvement in hostilities. The 1990s signalled a sea change in the scope of civilian participation in military operations, as Western militaries took advantage of the perceived ‘‘peace dividend’’ resulting from ‘‘victory’’ in the Cold War to dramatically downsize their militaries. Operations in the Balkans quickly revealed the shortcomings of this policy. Faced with the prospect of longterm stability operations such as IFOR (Implementation Force), SFOR (Stabilization Force), and KFOR (Kosovo Force), intervention forces had to turn to civilian contractors to perform many support and logistic functions.11 The twenty-first century conflicts in Iraq and Afghanistan took this trend to unprecedented levels. As hopes for a quick victory faded in both cases, Coalition forces settled in for the long haul. Contractors and civilian government employees flooded the theater of operations. By March 2009, United States Central Command, responsible for both conflicts, contracted for the services of nearly 243,000 civilians. Support for the various U.S. bases constituted 58% of this force, whereas 15% were involved in construction. Another 12% performed security functions.12 By late 2009, security contractors outnumbered all foreign armed forces (support and combat) in Iraq except those of the United States, and in Afghanistan only the United Kingdom and United States fielded more troops. These numbers do not include security contractors working for other states, international organizations,

(Footnote 8 continued) War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land Article 13, 18 October 1907, 36 Stat. 2277, 187 Consol. T.S. 227 [hereinafter Hague IV R]. 9 Parks 2005, at 7. 10 GC III, supra note 7, Article 4A(2). See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts Articles 43–44, 8 June 1977, 1125 U.N.T.S. 3 [hereinafter AP I]. 11 See U.S. Gov’t Accountability Office 2003 (discussing the shortfalls in U.S. military capabilities). Note that civilians had historically supported their country’s war effort far from the battlefield, for instance by working at ports from which military equipment, supplies, and troops were shipped. However, now civilians are directly supporting armed forces in the theater of operations. 12 Of those troops, 132,000 (down from almost 200,000 at the height of the conflict) were serving in Iraq, 68,000 in Afghanistan, and the remainder were at various other locations throughout the region. Dept of Def., off. of the Deputy Under Sec’y of Def. for Logistics and Materiel Readiness 2009.

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Civilians on the Battlefield

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or non-governmental organizations; a report to Congress issued in August 2008 estimated that 50 companies had approximately 30,000 security contractors in Iraq alone.13 That the contractors were present ‘‘on the battlefield’’ is indisputable. Although reliable figures on contractor deaths and injuries are unavailable, as of April 2008, the U.S. Department of Labor had received claims based on the death of 1,292 contractors (including Iraqis), and the wounding of 9,610 more, during the conflicts in Iraq and Afghanistan.14 The NGO iCasualties reports that by August 2009, 462 non-Iraqi contractors had been killed in Iraq, including 179 U.S. and 49 British citizens.15 Contractors also have been involved in numerous incidents involving civilian deaths, the most notorious example being the 2007 killing of seventeen Iraqis by Blackwater employees while escorting a U.S. Department of State convoy. U.S. judicial authorities indicted five of the contractors, while a sixth pled guilty.16 Contractor participation in military operations extends beyond providing security. For instance, Blackwater employees have reportedly participated in both CIA-led Predator strikes against al-Qaeda operatives and ‘‘capture or kill’’ operations conducted in Iraq and Afghanistan. The precise nature of Blackwater’s involvement, however, remains murky.17 At the outset of these conflicts, the activities and status of contractors were relatively unregulated in either law or policy.18 As a result of the public attention drawn by the scale of their presence and repeated incidents of misconduct, some states have endeavored to define the legal status of contractors and to create 13

Elsea et al. 2008. The questionable status of security contractors provided a major impetus for launch of the DPH Project. The key question was whether the various activities they engaged in amounted to direct participation or, indeed, whether they represented, in some cases, organized armed groups operating on behalf of a party to the conflict. These issues are developed infra. 14 Staff of H. Comm. on Oversight and Gov’t Reform, 110th Cong., Memorandum on Supplemental Information on Defense Base Act Insurance Costs 4 (Comm. Print 2008). The figures do not represent the total number killed or wounded, but rather only those, including security contractors, who have filed a claim with the Labor Department under either the Defense Base Act or War Hazard Compensation Act; further, it includes only Iraqis employed by U.S. entities. 15 iCasualties.com, Iraq Coalition Casualty Count: Contractors, http://icasualties.org/Iraq/ Contractors.aspx. The site cautions that the list is incomplete. 16 See Grand Jury Indictment, United States v. Slough, 669 F.Supp. 2d 51 (D.D.C. 2009) (No. 08-0360 (RMU)), 2008 WL 5129244. Charges were dismissed for evidentiary reasons in December 2009, although at the time of this writing there are indications the government will appeal the ruling. See United States v. Slough, No. 08-0360 (RMU), 2009 WL 5173785 (D.D.C. 31 December 2009); Timothy Williams, Iraqis Angered at Dropping of Blackwater Charges, NY TIMES, 2 January 2010, at A4. 17 See Risen and Mazzetti 2009a, b, at A1; Mazzetti 2009, at A1. 18 The vast majority of security contractors would not qualify as mercenaries because mercenaries must be recruited to take a ‘‘direct part’’ in hostilities (thus raising the question of whether their activities are direct participation) and cannot be nationals of a Party to the conflict. AP I, supra note 10, Article 47.2.

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systems whereby they can be held accountable for abuses they commit.19 Additionally, states sending and those receiving contractors and civilian employees have negotiated status of forces agreements, which establish jurisdictional prerogatives; the agreement signed between the United States and Iraq in November 2008 is especially notable.20 States have also begun to adopt common ‘‘best practices’’ regarding private military companies, as exemplified by the ICRC/ Swiss government sponsored 2009 Montreux document.21 In light of these circumstances, the DPH project initially focused on contractors—especially private security contractors—and civilian government employees. However, the assembled experts soon turned their attention to groups of ‘‘irregular’’ forces, like those of Hamas, Hezbollah, and the al-Qaeda network. From the perspective of states, consideration of the participation in hostilities of these irregular forces was even more central to the legal issues surrounding the targeting of participants in hostilities than that of contractors and employees. For instance, in Iraq, ongoing hostilities are primarily between the Iraqi armed forces (and their foreign partners) and groups such as external jihadists, Sunni extremists (e.g., the loosely affiliated groups comprising al-Qaeda in Iraq), and Shi’a extremists (e.g., Muqtada al-Sadr’s Jaish al-Mahdi and the Iranian funded Ketaib Hezbollah).22

10.3 The Law Regarding Direct Participation As noted in the Introduction, international humanitarian law seeks reasoned accommodation of both military necessity and humanitarian concerns. The 1868 St. Petersburg Declaration reflected this balance at the outset of the modern era of IHL when, in addressing small explosive projectiles, it ‘‘fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity.’’23 As only states make international law, through either treaty or practice (customary law), IHL necessarily takes account of states’ military requirements on the battlefield. Indeed, norms that unduly hamper military operations have little hope of emerging. At the same time, states have an interest in both protecting their populations and property from the carnage of warfare, as well as ensuring their combatants do not

19

See generally Schmitt 2007; Elsea et al. 2008, at 20–31. Agreement on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities During Their Temporary Presence in Iraq, USA–Iraq, Article 12, 17 Nov. 2008, available at http://georgewbushwhitehouse.archives.gov/infocus/iraq/SE_SOFA.pdf. 21 Letter from Peter Maurer, Permanent Representative of Switz. to the U.N., to the Sec’y Gen., U.N., Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict, annex, U.N. Doc. A/63/467-S/2008/636 (october 6, 2008). 22 Dale 2009, 52–56. 23 St. Petersburg Declaration Renouncing the Use in Time of War of Explosive Projectiles Under 400 Grammes Weight, Preamble, 11 December 1868, 138 Consol. T.S. 297. 20

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The Law Regarding Direct Participation

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suffer unnecessarily. Accordingly, the St. Petersburg Declaration noted that ‘‘[t]he only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy.’’24 These concerns are expressed in two ‘‘cardinal’’ principles of IHL recognized by the International Court of Justice: distinction and the prohibition of unnecessary suffering.25 Only the principle of distinction is of immediate relevance to the issue of ‘‘direct participation’’. Distinction appears in codified form for international armed conflict in Article 48 of the 1977 Additional Protocol I to the 1949 Geneva Conventions: ‘‘In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.’’26 Additional Protocol I specifically addresses civilians in Article 51.2 by providing that, ‘‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’’27 These provisions undoubtedly replicate customary law and thus bind even states that are not party to the treaty, such as Israel and the United States.28 Analogous prohibitions, also customary in nature, exist for non-international armed conflict.29 The principle of distinction acknowledges the military necessity prong of IHL’s balancing act by suspending the protection to which civilians are entitled when they become intricately involved in a conflict. Article 51.3 of Additional Protocol I conditions the principle of distinction with the caveat that it applies ‘‘unless and 24

Id. Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons Case), Advisory Opinion, 1996 I.C.J. 226 para 78 (July 8). The prohibition of unnecessary suffering addresses the means and methods of warfare used against the enemy and has no bearing on who qualifies as either a member of the armed forces or a direct participant in hostilities. 26 AP I, supra note 10, Article 48. 27 Id. Article 51.2. 28 ICRC, Customary International Humanitarian Law (Jean-Marie Henckaerts and Louise Doswald-Beck 2005), rules 1, 2, and 7 [hereinafter CIHL]. States that are not party to the Additional Protocols nevertheless acknowledge their customary nature. See, e.g., Commander’s Handbook on the Law of Naval Operations, Nwp 1-14 M, § 8-2 (2007) [hereinafter NWP 1– 14 M]. The acts clearly represent war crimes. See, e.g., Rome Statute of the International Criminal Court Article 8.2(b)(i), 17 July 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. The International Criminal Tribunal for the Former Yugoslavia has held the principle of distinction, as reflected in Article 51 of Additional Protocol I, to be customary in nature. See, e.g., Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeal Judgment, para 110 (29 July 2004); Prosecutor v. Galic, Case No.IT-98-29-T, Judgment, para 45 (5 December 2003). 29 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts art 13.2, 8 June 1977, 1125 U.N.T.S. 609 [hereinafter AP II]; See CIHL, supra note 28, rules 1–2; Rome Statute, supra note 28, Article 8.2(e)(i); Schmitt et al. 2006, reprinted in 36 Isr. Y.B. Hum. R. (Special Supplement) § 2.1.1.1 (2006); Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 100–127 (2 october 1995). 25

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for such time as [civilians] take a direct part in hostilities.’’30 Article 13.3 of Additional Protocol II sets forth an identical limitation in the case of non-international armed conflict.31 The notion appears elsewhere in IHL instruments and guidelines, including common Article 3 to the 1,949 Geneva Conventions,32 the Rome Statute of the International Criminal Court,33 and military manuals.34 That it constitutes customary international law is beyond dispute.35 The combined effect of the aforementioned provisions is threefold. First, the ‘‘direct participation’’ caveat means that, despite the general protection from attack that civilians enjoy, those who engage in acts amounting to direct participation in hostilities may be specifically and intentionally targeted (although the operations remain subject to all other IHL requirements). Second, to the extent that civilians may be attacked under the ‘‘direct participation’’ rule, their death or injury need not be considered in proportionality assessments.36 Third, by the same logic, states need not consider harm to direct participants when taking ‘‘constant care’’ to ‘‘spare’’ civilians during an attack. This customary law ‘‘precautions in attack requirement’’, found in Article 57 of Additional Protocol I, directs attackers to examine alternative methods (tactics) and means (weapons) of warfare to minimize incidental loss of civilian life or injury to civilians.37

30

AP I, supra note 10, Article 51.3. AP II, supra note 29, Article 13.3. 32 ‘‘Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely …’’ Convention (I) for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field Article 3.1, 12 August 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC I]; Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea Articles 3.1, 12 August 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; GC III, supra note 7, Article 3.1; Convention (IV) Relative to the Protection of Civilian Persons in Time of War Article 3.1, 12 August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. See also AP I, supra note 10, Articles 47, 67.1 (regarding the definition of mercenary and dealing with civil defense, respectively). 33 Rome Statute, supra note 28, Articles 8.2(b)(i), 8.2(e)(i). 34 See, e.g., NWP 1-14 M, supra note 28, § 8.2.2; United Kingdom Ministry of Defence, The Manual on the Law of Armed Conflict § 5.3.2 (2004) [hereinafter UK Manual]. 35 CIHL, supra note 28, rule 6; Schmitt et al. 2006, § 2.1.1.2; HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285 para 30. 36 By the customary international law principle of proportionality, reflected in Articles 51.5(b), 57.2(a)(iii), and 57.2(b) of Additional Protocol I, ‘‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’’ is prohibited. AP I, supra note 10. See also CIHL, supra note 28, rule 14; Schmitt et al. 2006, § 2.1.1.4; UK Manual, supra note 34, § 5.33; NWP 1-14 M, supra note 28, § 8.3.1. 37 See AP I, supra note 10, Article 57.2(a)(ii); CIHL, supra note 28, at rule 17; Schmitt et al. 2006, § 2.1.2; UK Manual, supra, § 5.32.4; NWP 1-14 M, supra note 28, § 8.3.1. 31

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The Law Regarding Direct Participation

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Despite the ostensible textual clarity of the aforementioned norms, the devil lies in the details. The DPH Project addressed three unresolved issues: (1) Who qualifies as a civilian in the context of direct participation? (2) What conduct amounts to direct participation? and (3) When is a civilian directly participating such that he or she is subject to attack? Curiously, the Interpretive Guidance took on a fourth issue that was unnecessary to a direct participation analysis: the rules and principles governing the conduct of attacks against direct participants. Its treatment of this fourth subject has led to what has been perhaps the fiercest criticism of the Guidance.

10.3.1 The Concept of ‘‘Civilian’’ The concept of civilian status is the greatest source of controversy, albeit principally with respect to the IHL governing detention. Reduced to basics, the issue, which surfaces only in international armed conflict, is whether civilians who take up arms qualify for treatment as: (1) prisoners of war under the 1949 Third Geneva Convention; (2) civilians under the 1949 Fourth Geneva Convention; or (3) ‘‘unlawful combatants’’ who enjoy only basic protection, such as that set forth in Common Article 3 to the 1949 Geneva Conventions and Article 75 of Additional Protocol I.38 In light of this debate, the ICRC elected to avoid the quandary by expressly limiting its analysis of civilian status in the Interpretive Guidance to the context of direct participation; it is not meant to have any bearing on the status of direct participants in detention situations. This bifurcated approach is not without risks. Despite the cautionary caveat as to the scope of application, treating direct participants differently than civilians proper seems to support the proposition that they are a separate category and, thus, not entitled to the protections civilians enjoy during detention under the Fourth Geneva Convention. At the same time, participants typically lack protection as prisoners of war under the Third Geneva Convention because they fail to comply with Article 4A(2)’s requirements that ‘‘members of other militia and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict’’ be ‘‘commanded by a person responsible for his subordinates,’’ bear a ‘‘fixed distinctive sign recognizable at a distance,’’ carry arms openly, and conduct operations ‘‘in accordance with the laws and customs of war.’’39 The Interpretive Guidance formula for international armed conflict defines civilians negatively as ‘‘all persons who are neither members of the armed forces 38

See Dinstein 2003 (discussing status); See also Watkin 2005; Roberts 2002. GC III, supra note 7, Article 4A(2)(a–d). This provision was based on certain partisan groups in World War II that were not formally part of their countries’ armed forces but that fought on behalf of a party to the conflict (e.g., Tito’s partisans in Yugoslavia). It is not applicable to the modern phenomenon of security contractors.

39

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of a party to the conflict nor participants in a levee en masse.’’40 On its face, the definition is unexceptional. It excludes all those encompassed by Article 1 of the 1907 Hague IV Regulations and Article 4 of the Third Geneva Convention and thus presents a classic understanding of the term ‘‘civilian’’.41 It also excludes armed forces as defined in Article 43.1 of Additional Protocol I.42 The ongoing controversy over Additional Protocol I’s relaxation of the Hague IV and Third Geneva Convention’s standards for combatant status has no bearing on the issue of direct participation, as the experts in the DPH Project agreed that individuals considered armed forces under Article 43.1 of Additional Protocol I should be targetable at all times.43 Applying this definition, the Interpretive Guidance concludes that the term ‘‘armed forces’’ for direct participation purposes includes both regular armed forces and any organized armed group that belongs to a party to the conflict. So long as these criteria (organized, armed, and belonging) are met, members of the latter category—with an important caveat discussed below—are not civilians and may be attacked at any time. Of particular importance is the fact that the direct participation standard’s limitation of attacks to the period during which the targeted individual is engaged in hostilities (‘‘for such time’’) does not apply to members of the armed forces. In justification of its approach, the Interpretive Guidance correctly points out that ‘‘it would contradict the logic of the principle of distinction to place irregular armed forces under the more protective legal regime afforded to the civilian population merely because they fail to distinguish themselves from that population, to carry their arms openly, or to conduct their operations in accordance with the laws and customs of war.’’44 The first two requirements, that the group be organized and armed, met with no opposition in the group of experts. On the contrary, treating an organized armed group as the equivalent of a regular armed force was viewed as a significant compromise on the part of those who wished to limit the notion of direct

40

IG, supra note 2, at 26. The Hague IV Regulations refer to armies, militia, and volunteer corps fulfilling the same four conditions echoed in GC III. See Hague IV R, supra note 8, Article 1; GC III, supra note 7, Article 4A(2). 42 ‘‘[A]ll organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.’’ AP I, supra note 10, Article 43.1. 43 Rather, the issues are the combatant privilege of engaging in hostilities and qualification for prisoner of war status. The United States’ objection that Additional Protocol I is ‘‘fundamentally and irreconcilably flawed’’ is based in part on the assertion that it ‘‘would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population …’’ Transmittal from President Ronald Reagan to the U.S. Senate (29 January 1987), reprinted in Agora: U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 Am. J. Int Law. 910 (1987). 44 IG, supra note 2, at 22. 41

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participation in order to retain protection from attack for as many individuals as possible. The compromise resolved, to some extent, the highly controversial ‘‘for such time’’ aspect of the direct participation rule. Experts concerned with the ‘‘for such time’’ limitation had previously worried about the incongruity that would result from the lack of an analogous temporal limitation for members of the armed forces.45 After all, if irregular forces benefited from the limitation, they would enjoy greater protection from attack than regular forces, which would thereby disrupt the general balance of military necessity and humanity that permeates IHL. The decision to treat organized armed groups as armed forces appeared an appropriate solution. An alternative approach championed by a number of the experts could also have maintained the requisite balance. By it, members of organized armed groups that did not fully qualify as combatants under the criteria of Article 4 of the Third Geneva Convention would remain civilians. However, insofar as they are members of a group that exists for the very purpose of engaging in hostilities, the ‘‘for such time’’ criterion must be interpreted as extending throughout the duration of their membership. Unlike civilians who act on their own, group members do not regain protection during periods in which they abstain from hostile activities (a contentious issue discussed below); instead, members must opt out of group membership in order to enjoy protection from attack. Although it might be difficult to discern when a member has left a group, proponents of this position argued that the direct participant should bear the risk of mistake, not his or her opponents, as IHL does not envision the participation of the former in the first place. For those DPH Project members who wished to preserve, in the context of detention, the characterization of direct participants as ‘‘civilians’’, this approach had the benefit of maintaining a parallel characterization in the direct participation analysis. At the same time, it met the concerns of others who wished to ensure that direct participants remain targetable as long as they are members of the group, not just when they engage in hostilities. Consensus foundered on the third criterion: that the group in question must ‘‘belong to a party to the conflict.’’ The Interpretive Guidance defines the notion of belonging to a party, which surfaced only at later stages of the DPH Project discussions, ‘‘as requiring at least a de facto relationship between an organized armed group and a party to the conflict. This relationship may be officially declared, but may also be expressed through tacit agreement or conclusive behavior that makes clear for which party the group is fighting.’’46 In support of its position, the Interpretive Guidance cites the nonbinding ICRC Commentary to Article 4 of the Third Geneva Convention.47 Yet, the allegedly supportive commentary actually accompanies a provision regarding eligibility for POW status. There is complete agreement that members of an organized armed

45 46 47

See, e.g., Parks 1990, 143. IG, supra note 2, at 23. See id. n. 20.

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group should not be entitled to POW status unless, inter alia, the group belongs to a party to the conflict; the underlying logic of the POW protection does not fit those who are not entitled under IHL to fight for a state. It may be sensible to shape detention issues by relationship to a belligerent, as states understandably wish to protect those who fight on their behalf. However, in targeting matters, the appropriate relationship logically should be determined by whom the individuals to be attacked are fighting against. This is, after all, the foundational premise of direct participation. As will be seen, the Interpretive Guidance itself defines direct participation by reference to acts ‘‘likely to adversely affect the military operations or military capacity of a party to the conflict.’’48 In other words, direct participants are ‘‘the enemy’’. It is this relationship that should have been employed in defining civilian status—groups that comprise ‘‘the enemy’’ should not benefit from treatment as civilians for targeting purposes, whether in international or noninternational armed conflict. Recall the Interpretive Guidance’s accurate assertion that the logic of the principle of distinction precludes treatment of irregular armed forces under the more protective legal regime afforded civilians because irregular armed forces fail to distinguish themselves from the civilian population, carry their arms openly, or conduct their operations in accord with the laws of war. Precisely the same logic should apply to groups that do not belong to a party to the conflict. In what was possibly a rebalancing effort, the Interpretive Guidance argues that ‘‘organized armed groups operating within the broader context of an international armed conflict without belonging to a party to that conflict could still be regarded as parties to a separate non-international armed conflict.’’49 The ‘‘belonging’’ criterion makes sense in the context of non-international armed conflict, for the essence of such conflicts is fighting between a state and a non-state armed group. Nevertheless, from a practical perspective, it is problematic to treat organized armed groups that do not belong to a party to an international armed conflict as involved in a non-international armed conflict. Having just excluded organized armed groups not belonging to a party from the ambit of armed forces—and thereby shielded them from attack when they do not participate in hostilities— under the law of international armed conflict, the Interpretive Guidance applies the non-international armed conflict standard to treat those who are members of ‘‘organized armed groups’’ as other than civilians. The result of this normative detour is that members of the organized armed group may not be attacked by virtue of membership in the group pursuant to the law of international armed conflict, but they may be attacked pursuant to that of non-international armed conflict. This difference is one certain to be lost on both those being attacked and those mounting attacks. Aside from the practical illogic of the approach, the distinction makes little sense in legal terms. Admittedly, there is no question that international and

48 49

Id. at 46. Id. at 24.

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non-international conflicts can coexist in the same battlespace.50 The clearest example occurs when a non-international conflict is already underway at the time an international armed conflict breaks out. For instance, a non-international armed conflict between the Taliban-led Afghan government and the Northern Alliance was already underway when the international armed conflict between the United States and Afghanistan (the Taliban) commenced. The latter conflict did not change the character of the pre-existing one. Similarly, if a state sends in its military to support rebel forces in a non-international armed conflict, or exerts control over those forces, the conflict between the two states is international in character.51 In another example, if a state splits into separate states, an ongoing non-international conflict transforms into an international one.52 However, the situation envisaged in the Interpretive Guidance differs dramatically from these scenarios. It presumes an ongoing international armed conflict in which irregular forces not belonging to a party to the conflict become involved in the hostilities. The paradigmatic example would be the conflict in Iraq, where irregular forces are engaged in hostilities against the American-led coalition. Some of these forces joined in the conflict for reasons wholly unrelated to support of the Iraqi government. Indeed, most Shiite militia and Sunni jihadist groups saw defeat of the secular Iraqi government as a positive event from which they could benefit. But they were nevertheless opposed to the presence of Coalition forces and took advantage of the international armed conflict to attack them. Seemingly, some support for the Interpretive Guidance’s position is to be found in the ICRC’s Commentary to Article 4 of the Third Geneva Convention. It provides that ‘‘[r]esistance movements must be fighting on behalf of a ‘Party to the conflict’ in the sense of Article 2, otherwise the provisions of Article 3 relating to non-international conflicts are applicable, since such militias and volunteer corps are not entitled to style themselves a ‘Party to the conflict.’’’53 Careful reading of the ICRC’s Commentary to Article 3 reveals, however, that the drafters of the Convention were viewing Article 3 conflicts exclusively in the guise of hostilities conducted against a force’s own government. There is no hint that the ICRC 50

Yoram Dinstein 2004 labels these conflicts ‘‘horizontally mixed,’’ p. 14–15. See also Greenwood 2002, p. 309, 1998, 117. 51 The International Court of Justice addressed this situation in the Nicaragua Case. See Military and Paramilitary Activities (Nicar. v. USA), 1986 I.C.J. 14 para 115 (June 27). Also, in Tadic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that ‘‘for the attribution to a State of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the State … [I]t must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.’’ Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgment, paras 120, 131 (15 July 1999). The ICTY distinguished its holding on this point from that in the Nicaragua Case, where the ICJ had set a higher standard: effective control. If a state assists the government in a noninternational armed conflict, even to the point of providing combat troops, the conflict remains non-international in nature. 52 Tadic, Case No. IT-94-1-A, Appeals Judgment, para 162. 53 ICRC 1960, 57.

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envisaged hostilities against governments with which the force’s government was fighting in an international armed conflict. On the contrary, the Commentary is crafted in terms of the ‘‘Party in revolt against the de jure Government’’, ‘‘rebellion’’, and ‘‘rebel Party’’.54 Adopting the organized armed groups approach, and then applying the international armed conflict criterion of ‘‘belonging to a Party’’, flies in the face of both the logic of the principle of distinction and the travaux préparatoire of the underlying black letter law. Moreover, since the Interpretive Guidance permits attack on members of groups not belonging to a party in the supposed noninternational armed conflict, the practical effect of this overly legalistic approach is negligible at best. There are but two rational approaches. Either members of an organized armed group should be treated as ‘‘armed forces’’ for targeting purposes regardless of their ties to a belligerent party or they should be treated as direct participants in the hostilities throughout the duration of their membership in the group.55 Complicating matters is an additional criterion that edged its way into the Interpretive Guidance over the series of meetings: the requirement that the members of the organized group in question perform a ‘‘continuous combat function’’ before they qualify as individuals who may be attacked on the basis of membership. According to the Interpretive Guidance, continuous combat function is synonymous with direct participation; that is, group members whose function is to engage in actions that would rise to the level of direct participation (see discussion below) are subject to attack. They need not be engaging in these activities at the time they are attacked; in this sense they resemble soldiers of the regular armed forces. Members not having such functions are considered to be civilians directly participating in hostilities and may be attacked only if, and for such time as, they undertake actions qualifying as direct participation. They are treated precisely as would individuals who participate in hostilities on ‘‘a merely spontaneous, sporadic, or unorganized basis.’’56 This combat function criterion applies to members of organized armed groups in both international and non-international armed conflicts. The continuous combat function idea initially surfaced in the context of noninternational armed conflict. Some of the DPH Project experts were concerned that members of organized armed groups often fail to distinguish themselves from the civilian population during internal conflicts and thereby heighten the risk of attacks on civilians due to erroneous conclusions that they are also members of an 54

Id. at 36. The Trial Chamber in Tadic clearly recognized the independent significance of membership when considering whether ‘‘acts taken against an individual who cannot be considered a traditional ‘non-combatant’ because he is actively involved in the conduct of hostilities by membership in some form of resistance group can nevertheless constitute crimes against humanity.’’ Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para 639 (7 May 1997) (emphasis added). 56 IG, supra note 2, at 34. 55

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armed group. As noted in the Interpretive Guidance, membership in irregularly constituted groups is not consistently expressed through uniforms, fixed distinctive signs, or identification cards. In view of the wide variety of cultural, political, and military contexts in which organized armed groups operate, there may be various degrees of affiliation with such groups that do not necessarily amount to ‘membership’ within the meaning of IHL … In practice, the informal and clandestine structures of most organized armed groups and the elastic nature of membership render it particularly difficult to distinguish between a nonState Party to the conflict and its armed forces.57

Given these challenges, these experts felt it was useful to limit membership to individuals who were unambiguously members of the organized armed group by virtue of their involvement in combat action. Over the course of the meetings, this criterion slowly bled into international armed conflict; its evolution is reflected in the fact that the Interpretive Guidance discusses the criterion with regard to international armed conflict only in passing and entirely by reference to its application during non-international armed conflict. Evidence of continuous combat function, according to the Interpretive Guidance, may be openly expressed through the carrying of uniforms, distinctive signs, or certain weapons. Yet it may also be identified on the basis of conclusive behavior, for example where a person has repeatedly directly participated in hostilities in support of an organized armed group in circumstances indicating that such conduct constitutes a continuous function rather than a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation.58

Any such determination must be ‘‘based on information which is practically available and can reasonably be regarded as reliable in the prevailing circumstances.’’59 The concern about identifications is somewhat counterfactual. Armed units of organized groups are sometimes distinguishable from their political or social wings, as is the case, for example, in certain circumstances with Hamas and Hezbollah. Within mixed groups, membership in the armed faction is often clearcut: only fighters wear uniforms and carry weapons. Membership in the armed wing may also be established through reliable intelligence, such as captured membership lists or communications intercepts, or by location, such as presence at a remote insurgent camp. The point is that while membership in an organized armed group can be uncertain, it may also be irrefutable. Furthermore, by the Interpretive Guidance’s approach, members of an organized armed group who have a continuous combat function may be attacked at any time, whereas those who do not, but who periodically take up arms, must be treated as civilians directly participating in hostilities and may only be attacked while doing so. In practice, it will usually be impractical to distinguish between the two categories. For example, if an individual is identified as having engaged in 57 58 59

Id. at 32–33. Id. at 35. Id.

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hostilities in a past engagement, how can an attacker possibly know whether the participation was merely periodic when it conducts a subsequent operation against the organized armed group? Application of the continuous combat function criterion also badly distorts the military necessity-humanitarian balance of IHL. A requirement of continuous combat function precludes attack on members of an organized armed group even in the face of absolute certainty as to membership. In contrast, membership alone in a state’s military suffices, even when there is absolute certainty that the individual to be attacked performs no functions that would amount to the equivalent of direct participation.60 To illustrate, a cook in the regular armed forces may be lawfully attacked at any time; his or her counterpart in an organized armed group may be attacked only if he or she directly participates and then only for such time as the participation occurs.61 What the Interpretive Guidance appears to have missed is that international humanitarian law already accounts for situations of doubt as to whether an individual is a civilian. Article 50.1 of Additional Protocol I, a provision generally deemed reflective of customary international law,62 provides that ‘‘[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’’63 Accordingly, it makes little sense to justify the continuous combat function criterion on the basis of concern about an inability to distinguish members of an organized armed group from civilians or civilian affiliates of the armed group, as IHL already deals with doubt through a presumption of civilian status. Even the Interpretive Guidance’s development of the combat function concept displays insensitivity to practical issues. Consider its mention of an identification card as distinguishing regular from irregular armed forces. The purpose of the card is identification in the event of capture.64 One can only wonder how it might assist an attacker to differentiate combatants from civilians in attack situations. Or consider the wearing of uniforms. When an armed group wears uniforms, the uniforms seldom clearly indicate any particular functions performed by its wearer. Except in cases of attack against isolated individuals who have been identified previously as having a continuous combat function or who are engaging in hostilities at the time of attack (in which case they could nevertheless be attacked as direct participants), the standard is highly impractical. In practice, most attacks will be launched against groups of individuals or in time-sensitive situations in which distinction based on function will prove highly difficult. Simply put, the 60

See Roberts 2008 (on the issue of creating differing legal regimes for those on the battlefield). Id. 62 See CIHL, supra note 28, at 23–24. The application of the rule has been subject to important qualifications. See, e.g., UK Statement upon Ratification, para (h), 28 January 1998, available at http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument (noting the obligation of a commander to protect his or her forces); UK Manual, supra note 34, § 5.3.4. 63 AP I, supra note 10, Article 50.1. 64 GC III, supra note 7, Article 17. 61

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Interpretive Guidance’s solution for avoiding mistaken attacks on civilians by imposing a function criterion for attacks on group members will accomplish little. Ultimately, the only viable approach to membership in the direct participation context is one that characterizes all members of an organized armed group as members of the armed forces (or as civilians continuously directly participating). It makes no more sense to treat an individual who joins a group that has the express purpose of conducting hostilities as a civilian than it would to distinguish between lawful combatants.

10.3.2 The Concept of Direct Participation Whereas the Interpretive Guidance’s treatment of the concept of a civilian is unacceptable due to the ‘‘belonging to a Party’’ and ‘‘continuous combat function’’ criteria, its development of the notion of direct participation is less problematic. The concept is developed from the prohibition on attacking or mistreating ‘‘persons taking no active part in the hostilities’’ found in Common Article 3 of the 1949 Geneva Conventions.65 It is well accepted in international law that the terms ‘‘active’’ and ‘‘direct’’ are synonymous, whether the concept is applied in noninternational or international armed conflict.66 Unfortunately, the phrase ‘‘direct part in hostilities’’ is undefined in IHL.67 The need for an agreed upon understanding of the phrase was therefore a primary impetus for the DPH Project. Simply participating in hostilities does not constitute direct participation such that it would result in a loss of protection from attack. Rather, it is necessary to distinguish ‘‘indirect’’ from ‘‘direct’’ participation.68 Doing so has generally been 65

Id. art 3. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para 629 (2 September 1998); Schmitt et al. 2006, § 1.1.2 (discussion). The Rome Statute employs the term ‘‘direct’’ in referring to the concept in both international and non-international armed conflict. Rome Statute, supra note 28, Articles 8.2(b)(i), 8.2(e)(i). 67 Thus, as used in treaties, it must be interpreted ‘‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’’ Vienna Convention on the Law of Treaties Article 31(1), 23 May 1969, 1155 U.N.T.S. 331. 68 As noted in the ICRC Commentary to Article 51.3, ‘‘There should be a clear distinction between direct participation in hostilities and participation in the war effort. The latter is often required from the population as a whole to various degrees. Without such a distinction the efforts made to reaffirm and develop international humanitarian law could become meaningless. In fact, in modern conflicts, many activities of the nation contribute to the conduct of hostilities, directly or indirectly; even the morale of the population plays a role in this context.’’ ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convections of 12 August 1949 para 1945 (Yves Sandoz et al. 1987) [hereinafter AP Commentary]. See also id. para 1679; Prosecutor v. Strugar, Case No. IT-01-42-A, Appeals Judgment, paras 175–76 (17 July 2008); Third Report on the Human Rights Situation in Colombia, Inter-Am. C.H.R., OEA/Ser.L/V/II.102, doc. 9 rev. para 1, Chap. IV, para 56 (1999). 66

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treated as a matter of judgment on the part of those planning, approving, and executing attacks. For instance, the UK Manual on the Law of Armed Conflict provides that, ‘‘[w]hether civilians are taking a direct part in hostilities is a question of fact.’’69 Similarly, the U.S. Commander’s Handbook on the Law of Naval Operations states that, ‘‘[d]irect participation in hostilities must be judged on a case-by-case basis … Combatants in the field must make an honest determination as to whether a particular civilian is or is not subject to deliberate attack based on the person’s behavior, location, attire, and other information at the time.’’70 In the Tadic case, the International Criminal Tribunal for the Former Yugoslavia likewise noted: [I]t is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in hostilities at the relevant time.71

The challenge with case-by-case assessments was the absence of an accepted basis for making the direct participation determinations. The nonbinding ICRC Commentary explains that direct participation ‘‘means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.’’72 The ICRC further defines hostilities as ‘‘acts of war which are intended by their nature and purpose to hit specifically the personnel and the material of the armed forces of the adverse Party.’’73 The group of experts struggled to refine the concept of direct participation throughout the course of the DPH Project meetings. Numerous options, including proximity to the battlefront, the extent to which the individual’s actions contribute to combat action, the extent of military command and control over the activities, and the degree to which the actor harbors hostile intent, were offered as possible foundational criteria for distinguishing indirect from direct participation. This author proposed a standard centered on the ‘‘criticality of the act to the direct application of violence against the enemy.’’74 From the DPH Project discussions, three common themes emerged that eventually matured into the Interpretive Guidance’s ‘‘constitutive elements’’ of direct participation:

69

UK Manual, supra note 34, § 5.3.3. NWP 1–14 M, supra note 28, § 8.2.2. 71 Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para 616 (7 May 1997). 72 AP Commentary, supra note 68, para 1944. See also Prosecutor v. Galic, Case No. IT-98-29-T, Judgment, para 48 (5 December 2003); Strugar, Case No. IT-01-42-A, (Appeals Judgment), para 178. 73 AP Commentary, supra note 68, para 1679. 74 For instance, gathering strategic intelligence would generally not be direct, whereas collecting tactical intelligence would qualify. Similarly, preparing an aircraft for a particular combat mission would qualify, while performing scheduled depot level maintenance would not. Schmitt 2005, at 534. 70

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1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); 2. There must be a direct causal link between the act and the harm likely to result either from that act or from a coordinated military operation of which that act constitutes an integral part (direct causation); and 3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).75 The elements are cumulative; only satisfaction of all three elements suffices to render an act one of direct participation. Although various experts entertained specific concerns about particular facets of the constitutive elements, most viewed them as, in a very general sense, reflecting the group’s broad understanding.76 It is useful to highlight several aspects of the criteria. The threshold of harm element requires only that the act in question be likely to result in the adverse effect; it need not eventuate. Such effects must be of a military nature. For instance, actions that diminish the morale of the civilian population would not qualify. Although they must be military in nature, effects need not constitute an ‘‘attack’’, a term of art in IHL.77 As an example, clearing mines emplaced by enemy forces or carrying out a computer network attack intended to monitor enemy tactical communications would qualify. The Interpretive Guidance usefully points out that it is not direct participation to refuse to engage in activities that might positively affect enemy operations, such as refusal to provide the enemy with information on the location of military forces.78 The limited notion of ‘‘harm’’ in the element proved controversial, as it would exclude actions by civilians that were designed to enhance a party’s military operations or capacity. Of course, in warfare, harm and benefit are relative concepts; actions that weaken one side in a conflict contribute to the wherewithal of the other, and vice versa. But if a distinction is to be drawn, it must be recognized that the strengthening of enemy capacity may be just as much a concern for commanders in the field as the weakening of one’s own forces. Consider the development and production of simple improvised explosive devices (IEDs) by Iraqi insurgent forces, and their training to use them. Today, IEDs cause the greatest number of casualties in Iraq and Afghanistan, and their fielding has necessitated an enormous investment in counter-technologies. IEDs have affected the morale of troops in the field and domestic attitudes about continued human 75

IG, supra note 2, at 46. See Schmitt 2010 (for an analysis focusing specifically on the constitutive elements and problems therewith). 77 ‘‘Attacks means acts of violence against the adversary, whether in offence or in defence.’’ AP I, supra note 10, Article 49.1. 78 IG, supra note 2, at 49. 76

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investment in the two conflicts. Clearly, the element of ‘‘harm’’ should have included both sides of the coin. Interestingly, it does so with respect to actions against civilians and civilian objects, which can meet the threshold test ‘‘regardless of any military harm to the opposing party to the conflict.’’79 Why the Interpretive Guidance requires harm in cases not involving civilians and civilian objects is unclear. The threshold of harm element includes inflicting death, injury, or destruction on civilians, civilian objects, and other protected entities. However, application of the notion of direct participation to attacks against protected persons and objects as well as against enemy forces is not self-evident. Additional Protocol I’s definition of ‘‘attacks’’ as ‘‘acts of violence against the adversary, whether in offence or defence’’, provides the basis for their inclusion.80 Relying on travaux préparatoire, the Interpretive Guidance suggests that, because the ‘‘phrase ‘against the adversary’ does not specify the target, but the belligerent nexus of an attack’’, violence directed against protected persons and objects is encompassed in the characterization of all ‘‘attacks’’ as acts of direct participation.81 Case law of the International Criminal Tribunal for the Former Yugoslavia, which has held that sniping and bombardment of civilians amount to an attack, is in accord.82 Although novel, the inclusion of harming protected persons and objects in the threshold of harm element drew minimal objection from the assembled experts. That said, it is a fair question as to why the criterion should be limited to death, injury, or destruction. Would it not, for instance, constitute direct participation to force inhabitants of a particular ethnic group to leave an occupied area during a conflict in which ethnicity factored? A more useful criterion in this regard would distinguish actions directly related to the armed conflict from those that are merely criminal in nature. The second element, direct causation, is rooted in the ICRC Commentary to both Additional Protocols I and II.83 During the DPH Project proceedings, this author suggested that, based on the Commentary text, direct participation … requires ‘but for’ causation (the consequences would not have occurred but for the act), causal proximity (albeit not direct causation) to the foreseeable consequences of the act, and a mens rea of intent; the civilian must have engaged in an

79

IG, supra note 2, at 50. AP I, supra note 10, Article 49. 81 IG, supra note 2, at 49 (citing Diplomatic Conference of 1974–1977, CDDH/II/SR.11, at 93f). 82 Prosecutor v. Galic, Case No.IT-98-29-T, Judgment, para 27 (5 December 2003); Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment, paras 282, 289 (31 january 2005). 83 AP Commentary, supra note 68, para 1679 (noting, in the context of an international armed conflict, that ‘‘[d]irect participation in hostilities implies a direct casual relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place’’); id. para 4787 (explaining in the context of a non-international armed conflict that the notion of direct participation ‘‘implies that there is a sufficient casual relationship between the act of participation and its immediate consequences’’). 80

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action that he or she knew would harm (or otherwise disadvantage) the enemy in a relatively direct and immediate way.84

Eventually, this proposal matured into the less legalistic causation formula set forth in the Interpretive Guidance. The Interpretive Guidance’s explanation of directness is strict on its face, arguably overly so. It requires that the harm caused by an act ‘‘be brought about in one causal step.’’85 The group of experts agreed that the relationship between the action in question and the harm caused should be relatively direct, but at no time did anyone suggest that it had to occur in but a single step. For instance, a civilian who gathers information on the movement of particular forces may report that information to an intelligence fusion center that in turn studies it and passes on the resulting analysis to a mission planning cell. The cell, depending on such factors as risk, value, and availability of attack assets, may decide to continue monitoring those forces and to only attack them once they are confirmed present and determined vulnerable. The causal link would be more than a single step, but the information would be no less critical to the ultimate attack. The initial identification of the forces surely represents direct participation. As the ‘‘one causal step’’ criterion is not developed to any degree in the Interpretive Guidance, it remains unclear whether it is merely a poorly drafted explanation of the agreed upon need for a clear link between the act and the ensuing harm or whether it reflects an actual, and if so, flawed, requirement. The Interpretive Guidance’s discussion would seem to suggest the former, for its examples of indirect participation—imposing economic sanctions, conducting scientific research and design, producing weapons, recruiting forces, and providing general logistics support—are far removed in the causal sense from the harm caused to the enemy.86 The reference to ‘‘one causal step’’ is unfortunate, as the constitutive element itself sets forth the essential requirement that the act must constitute ‘‘an integral part’’ of the operation causing the harm. ‘‘Integral’’ is not to be equated with ‘‘necessary’’. Although a certain action may constitute a critical facet of a military operation, in some cases the operation may nevertheless proceed without it, albeit with reduced likelihood of success. The classic example is again intelligence. While an attack typically has a greater chance of success and poses less risk to the attacker as the degree and reliability of intelligence increases, the absence of particular intelligence may not preclude its execution. The fact that the additional

84

Schmitt 2005, at 533; DPH Project, Summary Meeting Report 11, 25 (2004), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/directparticipation-report_res/$File/2004-07report-dph-2004-icrc.pdf [hereinafter DPH Project (2004)]; DPH Project, Summary Meeting Reprot 28, 34 (2005), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/directparticipationreport_res/$File/2005-09-report-dph-2005-icrc.pdf [hereinafter DPH Project (2005)]. 85 IG, supra note 2, at 55. 86 Id. at 53.

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intelligence is not indispensable does not exclude its collection from the ambit of direct participation. The Interpretive Guidance offers several examples of direct and indirect causation. Experts were particularly divided over the assembly and storage of improvised explosive devices, which the Interpretive Guidance labels as indirect participation. Based on the ‘‘one casual step’’ criterion, it is true that such activities would not qualify, but this illustrates the weakness of the standard. As the conflicts in Afghanistan and Iraq have exemplified, the use of IEDs is an effective tactic against superior forces. IEDs are often assembled and stored in close proximity to the battlefield by members of armed groups. Although the precise location and time at which they will be used may not be known in advance, they will likely be employed soon after their assembly. In this sense, the assembler of an IED is comparable to a ‘‘lookout’’ who reports the movement of enemy forces down a road. The precise attack for which the information will be used may be uncertain initially. However, because positional information is of fleeting value, it is likely to be used within a certain time frame and in a particular area; hence the general agreement that serving as a lookout represents direct participation. The Interpretive Guidance went astray by equating assembly of an IED with the production of munitions in a factory far removed from the battlefield, which all the experts agreed is indirect in nature. Like intelligence activities, the production of weapons is case-specific. In some circumstances, IED assembly and storage will constitute direct participation; in others it will not. Curiously, similar logic undergirds the Interpretive Guidance’s sensible treatment of direct causation in collective operations. The Guidance provides that, ‘‘where a specific act does not on its own directly cause the required threshold of harm, the requirement of direct causation would still be fulfilled where the act constitutes an integral part of a concrete and coordinated tactical operation that directly cases such harm.’’87 An excellent example, developed by the experts during the DPH Project meetings, was an unmanned aerial vehicle (UAV) attack that involves a pilot remotely operating the UAV, another person controlling the weapons, a communications specialist maintaining contact with the craft, and a commander in overall control. All are direct participants. Even greater controversy erupted over the treatment of human shields. All experts agreed that civilians forced to shield a military objective are not direct participants in hostilities. However, there was marked disagreement over the status of those who served as voluntary shields. The Interpretive Guidance correctly takes the position that ‘‘[w]here civilians voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to the conflict, they could directly cause the threshold of harm required for a qualification as direct participation in hostilities.’’88 For instance, civilians may block a bridge across which military vehicles are

87 88

Id. at 54–55. Id. at 56.

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advancing. However, the Interpretive Guidance goes on to suggest that ‘‘in operations involving more powerful weaponry, such as artillery or air attacks, the presence of voluntary human shields often has no adverse impact on the capacity of the attacker to identify and destroy the shielded military objective.’’89 The Interpretive Guidance therefore argues that in such a case the shields’ voluntary participation does not qualify as direct. As non-participating civilians, the presence of the shields accordingly must be considered when assessing proportionality. In extreme cases, a shield’s intentional actions may so alter the proportionality calculation that an attack on the target would cause excessive harm to civilians relative to the anticipated military advantage and thus bar the operation’s execution as a matter of law. Many of the experts, especially those with actual military experience, vehemently opposed this position.90 As with other Interpretive Guidance provisions, the voluntary human shields stance fails to fairly balance military necessity with humanitarian concerns. From an attacker’s perspective (the military necessity prong), it does not matter why an attack cannot be mounted. Whether the obstacle is physical or legal, any military advantage that might have accrued from the attack is forfeited. Indeed, the legal obstacle is often the more effective one. A physical obstacle can be removed or otherwise countered in many situations; a legal prohibition is absolute. Few would contest the characterization of actively defending a military objective as direct participation. However, the possibility that images of civilian casualties might be broadcast globally would generally serve as a far greater deterrent to attack than many air defense systems employed against the modern militaries of nations such as the United States and the United Kingdom. This very fact motivates the voluntary shielding in the first place.91 Finally, one has to query why IHL would distinguish between those who physically protect a military objective from those who intentionally misuse the law’s protective provisions to prevent an otherwise lawful attack. It would seem that the latter poses the greater risk to humanitarian ends by undermining respect for IHL. Proponents of the Interpretive Guidance’s approach object to the normative consequence that would result if voluntary shields were characterized as direct 89

Id. at 57. See DPH Project (2004), supra note 84, at 6; DPH Project, Summary Meeting Report 44 (2006), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/directparticipationreport_res/$File/2006-03-report-dph-2006-icrc.pdf [hereinafter DPH Project (2006)]; DPH Project, Summary Meeting Report 70 (2008), available at http://www.icrc.org/Web/eng/siteeng0.nsf/ htmlall/direct-participationreport_res/$File/2008-05-report-dph-2008-icrc.pdf [hereinafter DPH Project (2008)]. On the issue generally, see Schmitt 2009a. For a review of commentary on the subject, see Lyall 2008. In the Targeted Killings Case, the Israeli Supreme Court held that voluntary human shields were direct participants, while involuntary human shields were not. HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285 para 36. 91 It is common in modern conflict for a party to use ‘‘lawfare’’, the use of law as a ‘‘weapon’’ by creating the impression, correct or not, that an opponent acts lawlessly. On lawfare, see Dunlap Jr. 2001. 90

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participants: they may resultantly be directly attacked. While accurate as a matter of law, such concerns reveal unfamiliarity with military doctrine. One of the timehonored ‘‘principles of war’’ is economy of force, which holds that commanders should only use that amount of force necessary to attain the sought-after military advantage. Employing greater force wastes assets that would otherwise be available for employment against other military objectives.92 Therefore, those who urge that voluntary human shields should be treated as direct participants embrace the characterization not because they want the shields to be subject to attack, but rather because it will preclude the inclusion of their death or injury in the proportionality calculation and thereby maintain the delicate military necessityhumanitarian considerations balance. The third constitutive element of direct participation, belligerent nexus, requires that the act in question ‘‘not only be objectively likely to inflict harm that meets the first two criteria, but it must also be specifically designed to do so in support of a party to an armed conflict and to the detriment of another.’’93 There was significant discussion during the meetings of whether the intent of the actor was relevant; that is, whether the actor had to harbor a desire to affect the hostilities before his or her conduct could be deemed direct participation.94 Despite protestations by some experts who argued that soldiers on the battlefield are regularly called upon to assess the intent of others (e.g., in situations of self-defense or when maintaining order during a stability operation), the majority agreed that the better approach focused on an act’s objective purpose. Doing so removes such issues as duress or age from the analysis, which is an appropriate consequence, as most experts concurred that, for example, civilians forced to participate in military operations and child soldiers can be direct participants. Examples of acts that might qualify as direct participation on the basis of the first two elements but fail due to a lack of belligerent nexus include assaults against military personnel for reasons unrelated to the conflict, theft of military equipment in order to sell it, defense of oneself or others against unlawful violence (even when committed by combatants), exercise of police powers by law enforcement authorities, and civil disturbances unrelated to the conflict. The key question is whether the activities are intended to harm one party to the conflict, usually to the benefit of another.

92

U.S. joint doctrine defines economy of force as the ‘‘judicious employment and distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, defense, delays, deception, or even retrograde operations to achieve mass elsewhere at the decisive point and time.’’ Joint Chiefs of Staff 2008, A-2. 93 IG, supra note 2, at 58. The criterion of belligerent nexus should not be confused with the requirement of nexus to an armed conflict for the purpose of qualifying as a war crime. See, e.g., Prosecutor v. Kunarac, Case No. IT-96-23 and 231A, Appeal Judgment, para 58 (12 June 2002); Prosecutor v. Rutaganda, Case No. ICTR-96-3, Appeal Judgment, para 570 (26 May 2003). 94 DPH Project (2005), supra note 84, at 9, 26, 34, 66; DPH Project (2006), supra note 89, at 50; DPH Project (2008), supra note 89, at 66.

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The sole problem with the belligerent nexus criterion is the requirement that the act be ‘‘in support of a party to the conflict and to the detriment of another.’’ As noted in the discussion of the concept of civilian, there is substantial opposition to the requirement that an organized armed group belong to a party to the conflict in order to qualify as an armed force. For those who oppose the requirement, including this author, the belligerent nexus criterion should be framed in the alternative: an act in support or to the detriment of a party. This would account for cases where an armed group might engage in operations against one party without intending to assist its opponent. For example, an armed group might wish to fight an invading force in the hope of situating itself to seize power. Of course, in most cases, direct participation is a zero-sum game. To the extent one side is harmed, the other benefits.

10.3.3 Temporal Aspects of Direct Participation The qualifier ‘‘for such time’’ in the direct participation norm has long been a source of disagreement. In the 2006 Targeted Killings Case, the Israeli government argued that the phrase did not reflect customary international law but rather was simply a treaty restriction that limited only states party to the relevant instruments (principally the Additional Protocols). The Israeli Supreme Court rejected this contention by correctly noting that the issue was not whether the ‘‘for such time’’ limitation was customary but rather how to interpret it.95 Before exploring the ‘‘for such time’’ notion, it is important to emphasize that this concept does not apply to the actions of organized armed groups. All experts eventually agreed that in international armed conflict timing is a non-issue for organized armed groups that belong to a party to the conflict because their members do not qualify as civilians (at least by the approach taken in the Interpretive Guidance). As to groups that do not belong to a party in an international armed conflict, the better position is that they too cannot qualify as civilians. But even under the narrower approach adopted in the Interpretive Guidance, such groups would be involved as parties in a non-international armed conflict such that the concept of direct participation would be equally inapplicable to them. The net result of both positions is the same: there is no issue of direct participation, and therefore of temporality, for organized armed groups (at least regarding members with a continuous combat function, if one accepts this requirement). Consequently, the only instance in which the ‘‘for such time’’ issue arises is with respect to individuals whose involvement in the hostilities is spontaneous, sporadic, or temporary. The Interpretive Guidance takes the position that ‘‘measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the

95

Targeted Killings Case, IsrSC 57(6), at para 38. See also Prosecutor v. Blaskic, Case No. IT95-14-A, Appeal Judgment, para 157 (29 July 2004).

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deployment to and the return from the location of its execution, constitute an integral part of the act.’’96 This formula derives in part from the Commentary to the direct participation articles in Additional Protocols I and II. The former provides that a number of delegations to the Diplomatic Conference viewed direct participation as including ‘‘preparations for combat and return from combat’’ and that ‘‘once he ceases to participate, the civilian regains his right to the protection.’’97 The latter states that a civilian loses protection ‘‘for as long as his participation lasts. Thereafter, as he no longer presents any danger for the adversary, he may not be attacked.’’98 During the DPH Project meetings, the experts failed to achieve consensus over the meaning of this ‘‘for such time’’ standard, other than to generally agree that it was customary in nature. Two issues proved irresolvable. The first surrounds the precise moment at which direct participation begins and ends. According to the Interpretive Guidance, preparatory measures ‘‘correspond to what treaty IHL describes as ‘military operation[s] preparatory to an attack.’’’99 That phrase, as well as the term ‘‘deployment’’, is found in Additional Protocol I, Article 44.3, albeit in connection with the question of when combatants are obligated to distinguish themselves from the civilian population.100 However, the reference back to the treaty text proves tautological, for the Commentary offers no indication of those actions that constitute a military operation preparatory to attack. Complicating matters, the Commentary acknowledges that the term deployment ‘‘remained the subject of divergent views’’ at the Diplomatic Conference.101 The Interpretive Guidance takes a restrictive approach to the timing issue by suggesting that preparatory measures ‘‘are of a specifically military nature and so closely linked to the subsequent execution of a specific hostile act that they already constitute an integral part of that act.’’ Actions ‘‘aiming to establish the general capacity to carry out unspecified hostile acts do not’’ rise to this level.102 Deployment ‘‘begins only once the deploying individual undertakes a physical displacement with a view to carrying out a specific operation’’, whereas ‘‘return from the execution of a specific hostile act ends once the individual in question has physically separated from the operation.’’103 The key is the extent to which an act that takes place prior to or after a hostile action amounts to a concrete component 96

IG, supra note 2, at 65. AP Commentary, supra note 68, paras 1943–1944. 98 Id. para 4789. 99 IG, supra note 2, at 65. 100 AP I, supra note 10, Article 44.3. ‘‘Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.’’ Id. A combatant is also obliged to carry arms openly, ‘‘during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.’’ Id. Article 44.3.b. 101 AP Commentary, supra note 63, para 1714. 102 IG, supra note 2, at 66. 103 Id. at 67. 97

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of an operation. An alternative view popular among the group of DPH experts looked instead to the chain of causation and argued that the period of participation should extend as far before and after a hostile action as causal connection existed.104 The best example is that discussed above: the assembly of improvised explosive devices. Recall that the Interpretive Guidance excludes assembly from direct participation; an individual who acquires the materials and builds an IED that he eventually employs is only directly participating once he begins the final steps necessary to use it. By the alternative approach, the acquisition of the materials necessary to build the device as well as its construction and emplacement comprise preparatory measures qualifying temporally as the period of direct participation. The second point of controversy regarding the ‘‘for such time standard has become known as the ‘‘revolving door’’ debate. It is popularly symbolized by the farmer who works his fields by day, but becomes a rebel fighter at night. According to the Interpretive Guidance, individuals who participate in hostilities on a recurrent basis regain protection from attack every time they return home and lose it again only upon launching the next attack; hence the revolving door as the farmer passes into and out of the shield of protection from attack. Although the Interpretive Guidance acknowledges that a revolving door exists, it claims the phenomenon serves as an ‘‘integral part, not a malfunction of IHL. It prevents attacks on civilians who do not, at the time, represent a military threat.’’105 There are two holes in this logic. First, the reason civilians lose protection while directly participating in hostilities is because they have chosen to be part of the conflict; it is not because they represent a threat. Indeed, particular acts of direct participation may not pose an immediate threat at all, for even by the restrictive ICRC approach, acts integral to a hostile operation need not be necessary to its execution. Instead, the notion of ‘‘threat’’ is one of self-defense and defense of the unit, which is a different aspect of international law. It is accounted for in operational procedures know as rules of engagement, which are based as much in policy and operational concerns as in legal requirements. To the extent it is based in law, self-defense applies to civilians who are not directly participating in hostilities rather than those who are participating (as they may be attacked without any defensive purpose). Apart from the structural distortion of the revolving door phenomenon, the approach makes no sense from a military perspective. For instance, in asymmetrical warfare, individual insurgents typically mount surprise attacks; sometimes the attack does not occur until long after the insurgents have departed the area, as with IED or land mine attacks. Without an opportunity to prepare for attack, the best option for countering future attacks is to locate insurgent ‘‘hideouts’’ through human and technical intelligence and to target these hideouts when the insurgents are likely present. Yet, by the Interpretive Guidance’s approach, once the

104 105

See, e.g., Dinstein 2008, pp. 189-190; See also Watkin 2004, 17. IG, supra note 2, at 70.

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insurgents return from an attack, they are ‘‘safe’’ until such time as they depart to attack again. Again, the Interpretive Guidance has thrown the military necessityhumanitarian considerations balance wildly askew. The better approach is one whereby a civilian who directly participates in hostilities remains a valid military objective until he or she unambiguously opts out of hostilities through extended non-participation or an affirmative act of withdrawal.106 He or she may be attacked between episodes of participation. It may sometimes be difficult to determine when a direct participant no longer intends to engage in further hostilities, but having enjoyed no right to participate in the first place, the direct participant should bear the risk associated with misunderstanding as to status and not combatants who have been previously attacked. This represents a far more appropriate and sensible balancing of military necessity and humanitarian concerns. After all, IHL presupposes a conflict between particular actors who are entitled to use force: combatants. Charging direct participants, rather than combatants, with the consequences of a mistaken conclusion as to continued involvement in the hostilities maintains this internal logic. It might be objected that this approach violates the presumption of civilian status in cases of doubt. Most experts agreed that when doubt exists as to whether the target is a directly participating civilian or member of the armed forces (at least doubt sufficient to cause a reasonable combatant to hesitate to act), an attack may not be mounted or continued.107 However, the issue in this case is not doubt but rather mistake of fact: the civilian has decided to refrain from further participation in hostilities, but an attacker is unaware—and has no reason to be aware—of that fact. IHL does not prohibit the making of reasonable factual mistakes on the battlefield. International criminal law expressly acknowledges the likelihood of reasonable mistakes in the fog of war. The Rome Statute, for instance, provides for a mistake-of-fact defense when the mistake negates a mental element of the crime.108 In particular, the offense of willfully killing civilians requires that the perpetrator have been aware of the factual circumstances that established the protected status.109 Thus, a reasonable mistake as to the ‘‘for such time’’ aspect of

106 The United States District Court for the District of Columbia addressed the question of status as a member of an organized armed group in a 2009 Habeas Corpus proceeding involving a Guantanamo detainee. See Al Ginco v. Obama, 626 F. Supp. 2d 123 (2009). The district court held that ‘‘[t]o determine whether a pre-existing relationship sufficiently eroded over a sustained period of time, the Court must, at a minimum, look to the following factors: (1) the nature of the relationship in the first instance; (2) the nature of the intervening events or conduct; and (3) the amount of time that has passed between the time of the pre-existing relationship and the point in time at which the detainee is taken into custody.’’ Id. at 129. The court found the prior relationship with al Qaeda/Taliban to have been severed. Id. at 15. 107 IG, supra note 2, at 74; DPH Project (2005), supra note 84, at 44, 67; DPH Project (2006), supra note 89, at 70. 108 Rome Statute, supra note 28, Article 32. 109 See International Criminal Court, Elements of Crimes Articles 8(2)(b)(i), 8.2(e)(i), U.N. Doc. PCNICC/2000/1/Add.2 (2000). For commentary, see generally Dormann 2002.

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direct participation would preclude criminal responsibility for attacking an individual who was no longer a direct participant. IHL merely requires that actors take precautions that may prevent mistakes. With regard to the question at hand, an attacker must take feasible steps to verify that targets are not protected civilians.110 If it becomes apparent that a targeted individual does enjoy such protection, the attack must be canceled.111 In the ‘‘for such time’’ context, the norm requires an attacker to take reasonable steps to ensure that a potential target remains subject to attack. However, the risk that an attacker’s reasonable steps might not reveal that a civilian has withdrawn from hostilities can only logically be borne by the former direct participant.

10.4 Restraints on the Use of Force Possibly the area of the Interpretive Guidance that attracted the greatest criticism among the experts who participated in the DPH Project involves ‘‘restraints on the use of force in direct attack.’’112 According to the Interpretive Guidance, ‘‘the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.’’113 The Guidance cites the principles of military necessity and humanity in support of this proposition.114 The UK Manual on the Law of Armed Conflict, to which the Interpretive Guidance refers, explains that the principle of necessity allows only that ‘‘degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve a legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.’’115 The latter prohibits ‘‘the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.’’116

110

See AP I, supra note 10, Article 57.2(a)(i); CIHL, supra note 28, at rule 16; UK Manual, supra note 34, § 5.32.2. 111 See AP I, supra note 10, Article 57.2(b); CIHL, supra note 28, at rule 19. 112 IG, supra note 2, at 77. 113 IG, supra note 2, at 77. Use of the term ‘‘actually’’ is problematic for it introduces an objective test that would not account for situations in which such force reasonably appeared necessary in the circumstances, but which later proved unnecessary. However, this point is not developed here because the overall approach taken by the Interpretive Guidance is more generally flawed. 114 IG, supra note 2, at 78–82. 115 UK Manual, supra note 34, § 2.2. 116 Id. § 2.4.

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In its discussion on restraint of force, the Interpretive Guidance misapplies the principle of necessity, as evidenced by disagreement with its treatment on the part of certain DPH experts who were also responsible for drafting the UK Manual. The Manual correctly notes that military necessity is one of four fundamental principles underlying the positive rules of customary and treaty IHL.117 Specific customary and treaty rules set forth in IHL have already taken military necessity into account. Illustrative examples abound. For instance, ‘‘when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.’’118 Similarly, ‘‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.’’119 Most significantly, the definition of military objective requires that objects to be targeted make an effective contribution to military action and that their partial destruction, capture, or neutralization offer a definite military advantage.120 Only when the positive law specifically cites military necessity does it come into play as a factor in itself.121 No state practice exists to support the assertion that the principle of military necessity applies as a separate restriction that constitutes an additional hurdle over which an attacker must pass before mounting an attack. The operation is lawful so long as the target qualifies as a lawful military objective, collateral damage will not be excessive, and all feasible precautions are taken. The flawed logic vis-à-vis necessity is mirrored in the Interpretive Guidance’s citation to the principle of humanity. Humanity is equally a foundational principle of IHL rather than a positive rule. Thus, as explained in the UK Manual: [I]f an enemy combatant has been put out of action by being wounded or captured, there is no military purpose to be achieved by continuing to attack him. For the same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objects from attack because civilians and civilian objects make no contribution to military action.122

In both examples, the principle of humanity is expressed through positive rules and not general application of the principle.123 Again, no state practice supports

117

Id. § 2.1. The others are humanity, distinction, and proportionality. AP I, supra note 10, Article 57.3. 119 Id. Article 57.2(c). 120 Id. Article 52.2 (emphasis added). 121 As an example, GC IV, supra note 32, Article 53, provides that ‘‘[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.’’ 122 UK Manual, supra note 34, § 2.4.1. 123 AP I, supra note 10, Articles 41(c), 51. 118

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Restraints on the Use of Force

543

the application of the principle in the manner suggested by the Interpretive Guidance. Particularly problematic is the Interpretive Guidance’s assertion that ‘‘it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.’’124 IHL already accounts for situations in which an opportunity to capture an enemy exists by prohibiting attacks on an individual who ‘‘clearly expresses an intention to surrender.’’125 It is this rule, rather than that proposed by the Interpretive Guidance, that reflects the principle of humanity as well as the general balance between military necessity and humanitarian considerations. The crucial issue is not whether the individual in question can feasibly be captured but instead whether he or she has clearly expressed his or her intention to surrender. The claim that an individual who has not surrendered must, when feasible, be captured (or at least not attacked) is purely an invention of the Interpretive Guidance. A requirement does exist in human rights law to capture rather than kill when possible. It applies primarily during peacetime as well as in certain circumstances when occupying forces are acting to maintain order.126 The question is whether this human rights norm has any bearing on classic conduct of hostilities situations. Although it is now well settled that human rights law does apply during armed conflict, its application is conditioned by IHL in both international and noninternational armed conflict.127 In its Advisory Opinion on the use of Nuclear Weapons, the International Court of Justice addressed the issue of the interplay between human rights law and the IHL governing attacks. It held that, while the non-derogable prohibition on arbitrary deprivation of life found in Article 6.1 of the International Covenant on Civil and Political Rights applies in times of war, the ‘‘test of what is an arbitrary deprivation of life … falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.’’128 124

IG, supra note 2, at 82. AP I, supra note 10, Article 41(b). 126 See McCann v. United Kingdom, 21 Eur. Ct. H.R. 97, para 236 (1995). In McCann, the European Court of Human Rights held that ‘‘the use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk.’’ See also HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285 para 40 (‘‘[I]f a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed’’ [citing Mohamed Ali v. Public Prosecutor 1 A.C. 430 (1969)]. 127 Of course, the treaty or norm in question must be intended to apply to armed conflict. 128 Legality of the threat or use of nuclear weapons (Nuclear Weapons Case), Advisory Opinion, 1996 I.C.J. 226 para 25 (July 8). On the applicability of human rights law in armed conflict, see, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, 2004 I.C.J. 136 paras 105–106 (July 9); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 para 216 (December 19). 125

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The lex specialis dynamic explains the Interpretive Guidance’s circuitous attempt to squeeze a plainly human rights norm into a restraint on attacks against direct participants under the guise of IHL. The attempt fails because the IHL analysis on which it relies is fundamentally flawed. Of course, military considerations will often augur against attacking an individual who, although not hors de combat, can be captured; this is especially true in counter-insurgency operations, where the rules of engagement are typically restrictive.129 However, such considerations are grounded in policy and operational concerns and not in international humanitarian law. Inclusion of the proposed restrictions on attack in the Interpretive Guidance was unfortunate. Quite aside from the substantive weakness of the supporting argument, it was unnecessary to the determination of either the nature of direct participation or its temporal reach. Ultimately, doing so merely provided additional fodder for criticism by many of the experts involved in the DPH Project.

10.5 Concluding Thoughts Despite the critical nature of the comments above, there is much to recommend in the Interpretive Guidance. In particular, the constitutive elements of direct participation, although not bereft of flaws, represent a useful step forward in understanding the notion. The Interpretive Guidance’s principal author, Dr. Nils Melzer of the ICRC, is due special commendation for this creative and insightful contribution as well as for the Herculean task of trying to pull together the work of diverse experts over a five-year period. It cannot be denied that the Interpretive Guidance brings the issue of direct participation to the forefront of IHL dialogue— a place it should enjoy in light of the nature of conflict in the twenty-first century. The work effectively identifies and frames the issues and offers a sophisticated departure point for further mature analysis. However, the Interpretive Guidance repeatedly takes positions that cannot possibly be characterized as an appropriate balance of the military needs of states with humanitarian concerns. In particular, the Guidance proposes incompatible legal standards for conflicts between a state’s regular armed forces and non-state armed groups. Counter-intuitively, non-state actors, who enjoy no combatant privilege, benefit from greater protection than do their opponents in the regular armed forces. It is similarly disturbing that individuals who directly participate on a recurring basis enjoy greater protection than lawful combatants. Finally, the purported restraints on the use of force find little basis in international humanitarian law.

129 On the restrictive nature of engagements in a counterinsurgency, see, e.g., U.S. ARMY and U.S. Marine Corps 2006. For a discussion in the context of the hostilities in Afghanistan, see Schmitt 2009b.

10.5

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In light of these flaws, it is essential to grasp the prescriptive reach of the Interpretive Guidance. As Dr. Jakob Kellenberger, President of the ICRC, notes in his foreword to the document, ‘‘the Interpretive Guidance is not and cannot be a text of a legally binding nature. Only State agreements (treaties) or State practice followed out of a sense of legal obligation on a certain issue (custom) can produce binding law.’’130 Unfortunately, the Interpretive Guidance, the product of tireless efforts on the part of the ICRC and the experts involved, sets forth a normative paradigm that states that actually go to war cannot countenance.

Abbreviations ICRC

International Committee of the Red Cross

IED

Improvised explosive device

IFOR

Implementation Force

IHL

International humanitarian law

KFOR Kosovo Force NGO

Nongovernmental organization

POW

Prisoners of war

SFOR

Stabilization Force

U.S.

United States of America

UAV

Unmanned aerial vehicle

References Dale C (2009) Cong research serv, RL 34387, Operation Iraqi Freedom: strategies, approaches, results, and issues for congress Dep’t of Def, Off of the Deputy Under Sec’y of Def. for logistics and materiel readiness (2009) Contractor support for U.S. operations in uscentcom AOR, Iraq and Afghanistan. http:// www.acq.osd.mil/log/PS/p_vault/5A_February2010.doc Dinstein Y (2003) Unlawful combatancy. In: Borch F, Wilson P (eds.) International law and the war on terror. 79 Naval war C Int’ Law Stud 151 Dinstein Y (2004) The conduct of hostilities under the law of international armed conflict Dinstein Y (2008) Distinction and the loss of civilian protection in armed conflict. In: Michael DC (ed.) 84 International Law Studies 183 reprinted in 38 ISR. Y.B. Hum. R. 1 (2008) Dormann K (2002) Elements of war crimes under the statute of the international criminal court: sources and commentary

130

IG, supra note 2, at 7.

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Dunlap C Jr (2001) Law and military interventions: preserving military values in 21st century conflicts (Harvard Univ Carr Ctr, Working Paper) Elsea J, Nakamura K, Schwartz M (2008) Cong Res Serv, RL32419, Private security contractors in Iraq: background, legal status, and other issues 3 Greenwood C (1998) The development of international humanitarian law by the international criminal tribunal for the former Yugoslavia. 2 Max Planck YB of United Nations Law 97 Greenwood C (2002) International law and the ‘‘War Against Terror’’. 78 Int Aff 301 ICRC (1960) Commentary on the third Geneva Convention relative to the treatment of prisoners of war (Jean S. Pictet, ed.) Joint Chiefs of Staff (2008) Joint operations (Joint Publ’n 3-0) Lyall R (2008) Voluntary human shields, Direct participation in hostilities and the international humanitarian law obligations of states. 9 Melb J Int Law 313 Mazzetti M (2009) Outsiders hired as CIA planned to kill Jihadists. NY Times, August 20 Parks WH (1990) Air war and the law of war. AF L Rev 1:32 Parks WH (2005) Evolution of policy and law concerning the role of civilians and civilian contractors accompanying the armed forces. Presentation at the third meeting of experts 7 Risen J, Mazzetti M (2009a) Blackwater guards tied to secret raids by CIA. NY Times, December 11 Risen J, Mazzetti M (2009b) CIA said to use outsiders to put bombs on drones. NY Times, August 21 Roberts A (2002) Counter-terrorism, armed force, and the laws of war. 44 Survival 7 Roberts A (2008) The equal application of the laws of war: a principle under pressure. 90 Int Rev of the red cross 931 Schmitt MN (2005) Humanitarian law and direct participation in hostilities by private contractors or civilian employees. 5 Chi J Int Law 511 Schmitt MN (2007) Contractors on the battlefield: the US approach. Militair Rechtelijk Tijdschrift 264 (July–August 2007) Schmitt MN (2009a) Human shields in international humanitarian law. 47 Colum J Int Law 292 Schmitt MN (2009b) Targeting and international humanitarian law in Afghanistan. 39 Isr Y B Hum R 99 Schmitt MN (2010) Deconstructing direct participation in hostilities: the constitutive elements. 42 NYU J Int Law Pol Schmitt MN, Garraway CHB, Dinstein Y (2006) The manual on the law of non-international armed conflict with commentary U.S. Army, U.S. Marine corps (2006) Counterinsurgency. USA FM 3–24, USMC Warfighting Pub 3-33.5 U.S. Gov’t accountability office (2003) Report to the subcomm. on readiness and mgmt support of the s comm on armed servs. Report no. GAO-03-695 Watkin KH (2004) Controlling the use of force: a role for human rights norms in contemporary armed conflict. 98 Am J Int Law 1 Watkin K (2005) Harvard program on humanitarian policy and conflict research, occasional paper, warriors without rights? Combatants, unprivileged belligerents, and the struggle over legitimacy

Chapter 11

Human Shields in International Humanitarian Law

Abstract This chapter explores the international humanitarian law governing the use of human shields, a tragically prevalent tactic in contemporary warfare. It begins by setting forth the express prohibitions on the use of human shields. Of more concern is the issue of how the use of human shields affects an attacker’s obligations. The chapter distinguishes between compelled and voluntary shielding. It argues that those compelled to shield retain all the protections to which they are entitled as civilians during an attack. By contrast, those who voluntarily shield a military objective qualify as ‘‘direct participants in hostilities’’ who lose immunity from attack during the period of participation. Their status as direct participants also influences battlefield application of both the proportionality rule and the legal requirement to take feasible precautions in attack. The chapter concludes by suggesting that in cases of doubt as to whether shielding is voluntary, the shields should be treated as acting involuntarily.

Contents 11.1 The Defender’s Obligations ......................................................................................... 11.2 The Attacker’s Obligations .......................................................................................... 11.3 Resolving Doubt ........................................................................................................... 11.4 Concluding Thoughts ................................................................................................... References ...............................................................................................................................

554 571 579 581 583

Previously published in 47 Columbia Journal of Transnational Law (2009) and 38 Israel Yearbook on Human Rights (2008).

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_11,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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Human shielding involves the use of persons protected by international humanitarian law, such as prisoners of war or civilians, to deter attacks on combatants and military objectives. Labelled ‘‘counter-targeting’’ in military parlance,1 the tactic hardly represents a new battlefield phenomenon. Shielding occurred, for example, in both the American Civil War and the Franco-Prussian War.2 The British Manual of Military Law, issued as the First World War commenced, noted that placing prominent civilians on trains in occupied territory to prevent attacks ‘‘cannot be considered a commendable practice.’’3 During the Second World War, as pointed out in the Commentaries to the 1949 Geneva Conventions, public opinion was shocked by certain instances (fortunately rare) of belligerents compelling civilians to remain in places of strategic importance (such as railway stations, viaducts, dams, power stations or factories), or to accompany military convoys, or again, to serve as a protective screen for the fighting troops. Such practices, the object of which is to divert enemy fire, have rightly been condemned as cruel and barbaric…4

Despite condemnation, the practice persisted throughout the Cold War, including the Korea and Vietnam conflicts.5 Tragically, human shielding has become endemic in contemporary conflict, taking place across the legal spectrum of conflict.6 In international armed conflict,7 for instance, Iraq used human shields in its war with Iran from 1980 to 19888 and

1

Counter-targeting is ‘‘preventing or degrading detection, characterization, destruction and poststrike assessment of targets, by any means.’’ US Defense Intelligence Agency 2003. The accompanying text describes Iraqi use of human shields during the 1990–1991 First Gulf War. See also US Department of Defense 2003. 2 Spaight 1911, 466. Interestingly, during the Civil War, the Union Commander in Alabama ordered that secessionist preachers be placed on trains to deter attacks Winthrop 1896. 3 British War Office 1914, 306. 4 International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (iv): Commentary 208 (Jean pictet gen. ed., 1958) [hereinafter Geneva Commentary]. 5 Acheson 1950; Department of Defense Statement (26 Dec 1966) reprinted in Whiteman 1968, 427. 6 See, e.g., Schoenekase 2004, at 26–27. 7 International armed conflicts are armed confrontations between, at least in part, States. The precise scope of such conflicts is unsettled. In 2006, the Israeli Supreme Court, sitting as the High Court of Justice, looked to the geographic aspects of conflict, defining an international armed conflict as one that ‘‘crosses the borders of the state.’’ HCJ 796/02 Pub. Comm. Against Torture in Israel v. Gov’t of Israel [2006] IsrSC (57)(6) 285, para 18. 8 The Secretary-General, Report: Mission to Inspect Civilian Areas in Iran and Iraq which May have been Subject to Military Attack, U.N. Doc. S/15834 (June 20, 1983); Letter from U.N. Secretary-General, to the President of the Islamic Republic of Iran and to the President of the Republic of Iraq (June 29, 1984), U.N. Doc. S/16663 (July 6, 1984).

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those with United States led coalitions in 1990–1991 (Operation Desert Storm)9 and 2003 (Operation Iraqi Freedom).10 Notably, during Desert Storm the Iraqis seized foreign citizens for use as shields—Saddam Hussein labelled them ‘‘special guests’’11—whereas foreigners travelled to Iraq to act as shields against American and British attacks in anticipation of Iraqi Freedom.12

9

The United Nations General Assembly condemned the Iraqi use of human shields. See G.A. Res. 46/134, U.N. Doc. A/RES/46/134 (Dec. 17, 1991). See also U.N. Commission on Human Rights, Report on the Situation of Human Rights in Iraq, 48th Sess., Res. 1992/71, § 2(d); U.N. Doc. E/CN.4/1992/31 (1992); Declaration Following the Extraordinary European Political Cooperation Meeting in the Situation of Foreigners in Iraq and Kuwait, Paris (Aug. 21, 1990), communicated to the United Nations in U.N. Doc. A/45/433, S/21590, Aug. 22, 1990; European Council, Statement on the Situation of Prisoners of War, annexed to letter, from Luxembourg to the U.N. Secretary-General, (Jan. 23, 1991) U.N. Doc. A/45/940- S/22140; European Council, Declaration on the Gulf Crisis, Brussels (Oct. 28, 1990), communicated to the United Nations in U.N. Doc. S/21719 (Sept. 6, 1990); Gulf Cooperation Council, Ministerial Council, 36th Sess., Jeddah (Sept. 5–6, 1990), Final Communique, communicated to United Nations in U.N. Doc. S/ 21719 at 4; League of Arab States, Council Res. 5039 (Aug. 31, 1990), at para 2; Nordic Foreign Ministers, Declaration on the Iraq- Kuwait Conflict, Molde (Sept. 12, 1990), communicated to the United Nations in U.N. Doc. S/21751; Department of Defense, Conduct of the Persian Gulf War, Final Report to Congress Pursuant to Title V of the Persian Gulf Conflict Supplemental Authorization and Personnel Benefits Act of 1991, (Pub. L. 102–125) 607–608, 613, 619 (1992) [hereinafter Gulf War Report]. The Iraqis also threatened to use journalists as human shields, although those seized were released before the conflict began. See DeSaussure 1994, 52–53. 10 Iraqi soldiers were instructed to ‘‘use any means necessary’’ in resisting the U.S. Marines, including ‘‘putting women and children in the street.’’ Among their tactics, they regularly hid near residences in order to use the civilians therein as shields. A Human Rights Watch Report catalogued numerous eyewitness accounts. For instance, Major Michael Samarov, a battalion executive officer, encountered civilian shields as his Marines entered Baghdad on April 8. ‘‘There were busloads of people driven to our position on Highway 6. When [the Iraqi military advance] wouldn’t work, they threw families in the vehicles. It was a very challenging situation. We made every attempt to minimize casualties, but it was extraordinarily difficult,’’ he said. In al-Shatra, a Marine corporal said a caravan of three buses drove toward his unit. Fedayeen had put women and children in the first two to allow the third carrying Fedayeen to advance on the Marines safely. British troops also reported shielding from the southern part of the country. During fighting east of Basra, Colonel Gil Baldwin, commanding officer of the Queen’s Dragoon Guards, said he saw Iraqi forces ‘‘herd’’ women and children out of their homes and fire rocket-propelled grenades (RPGs) over their heads. Human Rights Watch, off Target: The Conduct of the War and Civilian Casualties in Iraq 171–173 (2003). https://199.173.149.140/reports/2003/usa 1203/5.htm [hereinafter off target]. 11 The Security Council condemned the action. S.C. Res. 664, U.N. Doc. S/RES/664 (Aug. 18, 1999). Seizure of foreign citizens is only permitted if ‘‘absolutely necessary’’ to maintain security in one’s own country or for ‘‘imperative reasons of security’’ in occupied territory. Geneva Convention Relative to the Protection of Civilian Persons in Time of War Articles 5, 42, 78, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. 12 Estimates are that from 100–250 peace activists from some 32 countries travelled to Iraq to serve as shields. Peterson 2003, at 1. On the legal implications of their actions under U.S. law, see Teninbaum 2004.

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Resistance groups in occupied territories have also employed human shields, sometimes with dreadful results, as in the 2002 Israeli operations in the West Bank city of Jenin.13 Terrorists have likewise adopted the tactic. Hezbollah did so during ‘‘Operation Change Direction,’’ the 2006 Israeli incursion into Lebanon,14 and al-Qaeda has used shields, including children, to deter air strikes in Afghanistan.15 Peacekeepers have even fallen victim to the tactic, most notably in Bosnia and Herzegovina in 199516 and Lebanon in 2006.17 Finally, the use of human shields has become commonplace in non-international armed conflicts,18

13

The Jenin incident occurred during Operation ‘‘Defensive Wall,’’ an Israel Defense Forces response to repeated Palestinian terrorist attacks against Israel. In April 2002, Israeli troops entered the Jenin refugee camp from which the terrorists were operating. During the fighting, the terrorists used human shields extensively. Because of the risk to civilians, the IDF mounted ground operations, rather than aerial attacks. Approximately 55 Palestinians and 23 IDF soldiers died in the fighting at the camp (and related facilities). The Secretary-General, Report Prepared Pursuant to General Assembly Resolution ES-JO/JO, U.N. Doc. A/ES-10/186 (July 30, 2002). The Israeli Supreme Court addressed the incident in HCJ 3114/02 Barake v. Minister of Defense [2002] IsrSC 56(3) 11. 14 See Erlich 2006; Human Rights Watch 2007, 52–60. Regarding the 1996 ‘‘Operation Grapes of Wrath,’’ see also Reisman 1997, 389. 15 Synovitz 2007; Faiez 2007. On the use of shields by terrorists, particularly the moral dimension of the issue, see Gross 2002. 16 On the use of shields in the Balkan conflicts, see S.C. Res 998, U.N. Doc. S/RES/998 (June 16, 1995); U.N. Commission on Human Rights, Res. 1995/89, U.N. Doc. E/CN.4/RES/1995/89 (Mar. 8, 1995); U.N. Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, 5th Periodic Report, paras 36–37, 39, 84, U.N. Doc. E/ CN.4/1994/47 (Nov. 17, 1993); Council of Europe, Parliamentary Assembly, Res. 1011, (Sept. 28, 1993); Council of Europe, Parliamentary Assembly, Report on the Situation of Refugees and Displaced Persons in the Former Yugoslavia, Doc. 6740 (Jan. 19, 1993), at 19. During Operation Allied Force, the 1999 NATO air campaign against the Federal Republic of Yugoslavia, Yugoslavian forces were alleged to have forcibly concentrated civilians in a military camp in the village of Korisa. Nearly 90 civilians were killed during attacks on the facility. Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign against the Federal Republic of Yugoslavia (n.d.), paras 87–89, http://www.un.org/icty/pressreal/ nato06l300.htm; Department of Defense 2000, 60–63; Amnesty International 2000. For an academic treatment of the attack, see Voon 2001, 1110–1111. 17 Human Rights Watch 2007, at 57–60. 18 ‘‘Non-international armed conflicts are armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government. Internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to an armed conflict.’’ Schmitt (2006) The Manual on the Law of Non-International Armed Conflict with Commentary (Int. Inst. of Humanitarian Law 2006), reprinted in 36 Israel Yearbook On Human Rights (2006) (Special Supplement), paras 1.1.1 a–b [hereinafter NIAC Manual]. See also commentary to the article, id. While the Icrc views non-international armed conflict as restricted to civil wars, rebellions, and the like, see, e.g., International Committee of the Red Cross 1960, 35–36, the U.S. Supreme Court recently characterized the global war on terrorism as ‘‘not international’’ because of the absence of a belligerent State on each side of the conflict. Hamdan v. Rumsfeld, 548 U.S. 557, 630–631 (2006).

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such as those in El Salvador,19 Somalia,20 Liberia,21 Sierra Leone22 and Chechnya.23 In great part, the dramatic asymmetry characterizing many of today’s conflicts engenders human shielding.24 Confronted with overwhelming technological superiority, weaker parties have embraced shielding as a ‘‘method of warfare’’ designed to counter attacks against which they cannot effectively defend using the weaponry and forces at their disposal.25 The tactic presumes that the prospect of killing civilian shields may dissuade an attacker from striking. In a paradigmatic example, Iraq, fearing a Coalition attack to enforce United Nations weapons inspection requirements, openly announced in 1997 that ‘‘volunteers’’ had gathered at strategic locations26; President Saddam Hussein ‘‘thanked all the sons of the great Iraqi people who headed for the people’s palaces, factories and other installations to be a strong shield against the unjust aggression threatening our country.’’27 Operationally, deterrence can manifest itself in one of three ways (or a combination thereof). First, the attacking side may refrain from conducting an attack based on moral concerns about harming those civilians forced to act as shields. Second, the attacker may abandon a planned strike because of possible negative publicity. After all, images of dead and injured civilians transmitted across a globalized media (which often pays little heed to the military rationale of an operation) can make it appear as if the attacker has mounted inhumane operations. In such an environment, even a tactically sound engagement causing casualties risks strategic fallout.28 This consequence typically constitutes the principle objective of the party employing shields; it seeks to weaken support for the enemy’s war effort on the part of the international community, other States (including coalition partners), non-governmental organizations and individuals, while enhancing its own domestic and international backing. Third, at a certain point, the number of civilians likely to be injured or killed during an attack becomes

19

Block 2007, 378, 380. U.N. Sec. Council, Report Pursuant to Paragraph 5 of the Security Council Resolution 837 (1993) on the Investigation into the 5 June 1993 Attack on United Nations Forces in Somalia Conducted on Behalf of the Secretary-General, annex and paras 8–9, U.N. Doc. S/26351 (1993). 21 U.N. Sec. Council, Fifteenth Progress Report of the Secretary-General on the United Nations Observer Mission in Liberia para 24, U.N. Doc. S/1996/47 (1996). 22 U.N. Sec. Council, First Progress Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, paras 33, 36, U.N. Doc. S/1998/750 (1998). 23 Hollis 1995. 24 Schmitt 2007b. 25 ‘‘Methods and means of warfare’’ is an international humanitarian law term of art referring, in military terms, to tactics and weapons respectively. 26 Iraqis Volunteering as Human Shields 1997. 27 Saddam Thanks Human Shields, Announces Day of Victory 1997. The Iraqis again used human shields in advance of the U.S. and British attack of December 1998, Operation Desert Fox. Human Rights Watch 2003b. On Operation Desert Fox, see Department of Def., Operation Desert Fox, http://www.defenselink.mil/specials/desertfox/. 28 See discussion of the ‘‘bullying syndrome’’ in Schmitt 2007a, 468–471. 20

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‘‘excessive’’ relative to its anticipated ‘‘military advantage,’’ such that the international humanitarian law proportionality principle bars attack.29 Such ‘‘lawfare’’ exploits legal norms to impede the enemy’s operations (at the tactical, operational or strategic levels of warfare).30 It includes not only instances in which an intended operation would be prohibited due to the presence of sufficient numbers of civilians, but also those in which the attacker’s operations might be perceived as unlawful.31 This chapter explores the international humanitarian law bearing on the use of human shields.32 It begins by addressing the express prohibitions on their use,

29

See infra notes 35 and 130 and accompanying text. Major General Charles Dunlap defines lawfare as ‘‘the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.’’ Dunlap Jr 2003, 480. See also Dunlap Jr 2001. 31 For instance, the Gulf War Report noted that during Operation Desert Storm, 30

[t]he government of Iraq sought to convey a highly inaccurate image of indiscriminate bombing by the Coalition through a deliberate disinformation campaign. Iraq utilized the collateral damage that occurred—including damage or injury caused by Iraqi surface-toair missiles and antiaircraft munitions falling to earth in populated areas—in its campaign to convey the misimpression that the Coalition was targeting populated areas and civilian objects. This disinformation campaign was factually incorrect, and did not accurately reflect the high degree of care exercised by the Coalition in attack of Iraqi targets Gulf War Report, supra note 9, at 613–614. The Department of Defense provides the following delineation of the levels of war: Strategic Level of War. The level of war at which a nation, often as a member of a group of nations, determines, national or multinational (alliance or coalition) security objectives and guidance, and develops and uses national resources to accomplish these objectives. Activities at this level establish national and multinational military objectives; sequence initiatives; define limits and assess risks for the use of military and other instruments of national power; develop global plans or theater war plans to achieve these objectives; and provide military forces and other capabilities in accordance with strategic plans. Operational Level of War. The level of war at which campaigns and major operations are planned, conducted, and sustained to accomplish strategic objectives within theaters or other operational areas. Activities at this level link tactics and strategy by establishing operational objectives needed to accomplish the strategic objectives, sequencing events to achieve the operational objectives, initiating actions, and applying resources to bring about and sustain these events. These activities imply a broader dimension of time or space than do tactics; they ensure the logistic and administrative support of tactical forces, and provide the means by which tactical successes are exploited to achieve strategic objectives. Tactical Level of War. The level of war at which battles and engagements are planned and executed to accomplish military objectives assigned to tactical units or task forces. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and to the enemy to achieve combat objectives. Department of Defense Dictionary of Military and Associated Terms 2007. 32 International humanitarian law is also referred to (with minor substantive distinctions) as the law of war, law of armed conflict, and jus in bello.

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most of which are straightforward articulations of longstanding customary norms.33 The one unsettled issue involves whether the use of voluntary human shields (those who willingly serve as shields) by a party violates the relevant proscriptions. After exploring the options in that regard, the chapter turns to the more complex and controversial issue of an attacker’s obligations when facing human shields, a subject unaddressed in lex scripta. In particular, the analysis distinguishes compelled and voluntary shielding through reference to the international humanitarian law proviso that civilians who directly participate in hostilities lose their protection from attack for such time as they so participate.34 The involuntary-voluntary dichotomy also affects battlefield application of both the proportionality rule (prohibiting attacks ‘‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated)’’35 and the legal requirement to take precautions in attack (requiring selection of tactics, weapons and targets that will minimize civilian losses).36 As the distinction is often unclear in practice, the chapter concludes with a discussion of how to resolve doubt as a matter of law.37 33

Customary international law is ‘‘a general practice accepted as law.’’ United Nations Charter, Statute of the International Court of Justice, June 26, 1945, 3 Bevans 1153, 59 Stat. 1031 Article 38(1)(b). According to the International Court of Justice, Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.

North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 44 (Feb. 20). See also Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, 36 (June 3). For an excellent summary of the nature and sources of customary international humanitarian law, see Henckaerts 2005. On customary international law generally, see Dinstein 2006. 34 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Article 51.3, June 8, 1977, 1125 U.N.T.S. 3, [hereinafter AP I]; International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts and Louise Doswald-Beck eds., 2005), [hereinafter CIHL]. 35 AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b); see infra note 130 and accompanying text. 36 AP I, supra note 34, Article 57; see infra note 149 and accompanying text. 37 The chapter does not address the issue of shielding with civilian objects. The issues regarding objects as shields differ because international humanitarian law anticipates the use of civilian objects for military purposes by defining military objectives as objects ‘‘which by their… purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’’ AP I, supra note 34, Article 52.2; see infra note 130 and accompanying text. For example, a Party may use a civilian apartment building as an observation post or block a bridge with vehicles. Doing so is lawful, although the building and vehicles become military objectives which may be attacked and which factor into neither the proportionality calculation, nor precautions in attack assessments.

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Finally, it is helpful to understand that two foundational considerations underlie the interpretive approach adopted in this chapter. First, all international humanitarian law reflects a delicate balance between military necessities and humanitarian concerns. As famously noted in the 1868 St. Petersburg Declaration, the law ‘‘fix[es] the technical limits at which the necessities of war ought to yield to the requirements of hostilities.’’38 The process of law formation thus takes cognizance of the military’s need to fight effectively by tempering humanitarian norms with military common sense. The fact that only States in the Westphalian constitutive system possess authority to generate international law (through treaties or by practice that matures into custom) necessitates this dynamic of accommodation. After all, States are presumptively rational actors who accept constraints on their ability to conduct military operations only with great reluctance. This being so, treaties ‘‘should be construed not as theorems of Euclid, but with some imagination of the purposes which lie behind them.’’39 Second, interpretation of ambiguous norms has to reflect contemporary warfare. States both apply and are the subjects of international humanitarian law norms. Said norms must remain relevant to contemporary circumstances if States are to remain willing to implement them in practice. Therefore, although they emerged in the context of the balance between military necessity and humanitarian considerations prevailing at the time of their creation, any subsequent uncertainty must be resolved in light of present circumstances.40

11.1 The Defender’s Obligations The use of human shields has long violated international humanitarian law.41 This is as it should be, for the practice skews the law’s balance between military necessity and humanitarian considerations by leveraging its protections for military ends. In the body of contemporary humanitarian law applicable during international armed conflict, Additional Protocol I of 1977, Article 51.7, provides the broadest and most specific proscription: The presence or movement of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in

38

St. Petersburg Declaration Renouncing the Use in Time of War of Explosive Projectiles under 400 Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297. 39 Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2nd Cir. 1914) (Judge Learned Hand speaking for the court in the context of statutes). 40 As noted, ‘‘[t]he securing of appropriate world public order, minimum and optimum, requires the establishment and maintenance of a prescriptive process whose outcomes—norms prescribed and potential norms rejected—are effective, rational, and inclusive.’’ McDougal and Reisman 1980, 273. 41 For instance, in 1919, a Commission tasked with identifying German (and other enemy) violations of law cited the prohibition on using human shields. Marin 1957, 678.

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attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.42

Article 51.7 is a corollary to Article 48, the general rule of distinction between combatants and military objectives on one hand and civilians and civilian objects on the other,43 as well as Article 51.1, which provides that ‘‘[t]he civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.’’44 Whether the use of the civilians to shield is passive, as when a party to the conflict takes advantage of their presence (they may not even realize they are being so used), or active, for example, when the party directs them to a location they will shield, is irrelevant since the first sentence of Article 51.7 addresses the former situation, whereas the second covers the latter. Instead, the prescriptive key lies in the actor’s mens rea. Military forces often find themselves unavoidably collocated with civilians. A classic example is a military retreat down a road along which civilians are fleeing. The presence of civilians in no way renders the retreat unlawful; mere collocation does not trigger the norm. However, it would be unlawful for the retreating troops purposefully to intermingle with civilians to stave off attack. The International Committee of the Red Cross’ (ICRC) commentary to the article supports this interpretation by defining the word ‘‘movements’’ in the first sentence of the prohibition as ‘‘cover[ing] cases where the civilian population moves of its own accord.’’45 This being so, the subjective intent of the military commander directing his forces determines the lawfulness of his actions.46

42 AP I, supra note 34, Article 51.7. Following World War II, the ICRC sought to convince States to adopt a treaty designed to protect the civilian populations during bombardments. In 1954, its Board of Governors tasked the ICRC to offer a draft text at the 1957 Red Cross Conference in New Delhi. That Conference made several amendments to the resulting ICRC Draft Rules and the product was subsequently sent out to States. Although States took no action, many of the Draft’s rules formed a basis for provisions in the 1977 Additional Protocols to the Geneva Conventions. Rule 13 provided, ‘‘[p]arties to the conflict are prohibited from placing or keeping members of the civilian population subject to their authority in or near military objectives, with the idea of inducing the enemy to refrain from attacking those objectives.’’ International Committee of the Red Cross 2004. 43 ‘‘In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives.’’ AP I, supra note 34, Article 48. 44 Id., Article 51.1. 45 International Committee of the Red Cross 1987, para 1988. 46 The Organization for Security and Cooperation in Europe (OSCE) reported that during Operation Allied Force in 1999 ‘‘interviewees may have been used as human shields but did not recognize it from their perspective. Yugoslav authorities frequently accompanied convoys of refugees with military materiel and personnel, a practice which may have been motivated by the desire to protect such equipment during its movements.’’ OSCE 1999.

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Similarly, occupying forces may lawfully evacuate the civilian population from an area ‘‘if the security of the population or imperative military reasons so demand.47 In order to execute the evacuation, the operation would likely involve military forces. Although the de facto consequence might be to prohibit an attack on those forces due to operation of the proportionality principle, the action would not violate Article 51.7.48 Only if the occupation forces intentionally took advantage of the population’s evacuation to shield their own movements or to attack the enemy would a violation occur. Inclusion of specific intent as an element of the war crime of shielding that is codified in the International Criminal Court Statute illustrates the centrality of the actor’s state of mind.49 Obviously, intent can prove difficult to identify in practice. For instance, it may be unclear whether a force has moved into a village to exploit the presence of civilians or simply because of the flow of battle. Yet, in some cases, intent can be adduced circumstantially. In an unambiguous example, Iraqi fighters travelling down roads during Operation Iraqi Freedom regularly veered towards civilian vehicles whenever American attack helicopters appeared.50 There is but one explanation for the phenomenon, taking advantage of civilians as shields. Uncertainty, therefore, is an issue of proof, not substance. Finally, although not textually self-evident, the official ICRC Commentary to Additional Protocol I asserts that the prohibition contained in the second sentence ‘‘certainly also applies to transfers of prisoners of war, and civilian enemy subjects ordered by the authorities of a belligerent Power to move within its own territory.’’51 While stretching Article 51.7 to cover such individuals may overreach, the assertion is sound as a matter of customary international humanitarian law.52 Article 58 of Additional Protocol I complements the prohibition on using civilian shields by imposing an affirmative obligation on Parties to ‘‘endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.’’53 The article further provides that parties must ‘‘[a]void locating military objectives within or near densely populated areas.’’54 Of course, valid military or humanitarian reasons may exist for failing to

47

GC IV, supra note 11, Article 49. De jure because of the operation of the proportionality principle. 49 ‘‘The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.’’ International Criminal Court, Elements of Crimes, Article 8(2)(b)(xxiii), U.N. Doc. PCNICC/2000/1/Add.2 (2000). For commentary, see Dörmann 2002, 344–345. 50 Off Target, supra note 10, at 67. 51 International Committee of the Red Cross 1987, para 1988. 52 CIHL, supra note 34, Commentary to rule 97; see also infra note 58 and accompanying text. 53 AP I, supra note 34, article 58(a). 54 Id. article 58(b). 48

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move civilians away from military objectives or situating military forces near them; for instance, evacuation of the civilian population during urban combat can place that population at greater risk or may be militarily imprudent. As a result, both requirements are conditioned by the hortatory caveat ‘‘to the maximum extent feasible.’’ This caveat is an indispensable recognition that ‘‘circumstances of war can change very rapidly.’’55 That the norm applies only in territory under the effective control of a force, and not where forces are in contact or merely transiting an area, further narrows its reach.56 Despite their complementary nature, Articles 51.7 and 58 impose dissimilar standards. Contravention of the former requires a specific intent to shield. By contrast, violation of the latter merely entails unexcused (such as impossibility) non-compliance. Failure to either move civilians away from military objectives or refrain from emplacing them near civilians, when doing so is feasible in the attendant circumstances, breaches the norm. Further, violation of the human shielding prohibition constitutes a war crime, whereas noncompliance with Article 58’s requirements does not.57 Articles 51.7 and 58 mirror protections resident in the 1949 Geneva Conventions for various categories of individuals and objects. Article 23 of the Third Convention prohibits using prisoners of war to ‘‘render certain points or areas immune from military operations,’’58 a provision based in Article 9 of the 1929 Geneva Convention on Prisoners of War.59 Article 28 of the Fourth Convention extends the same protection to individuals who ‘‘find themselves … in the hands of a Party to the conflict or Occupying Power of which they are not nationals.’’60

55

International Committee of the Red Cross 1987, para 2249. The term ‘‘feasible’’ has been the subject of some controversy. For instance, upon ratification, the United Kingdom stated that it understood the term as referring to ‘‘that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.’’ Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, United Kingdom Reservation, Jan. 28, 1998. http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P. For the proceedings of the Diplomatic Conference on the subject, see O.R. VI, pp. 226 ff., CDDH/SR.42, Annex (ad article 50). The official ICRC Commentary rejected the standard, arguing that it ‘‘seems too broad.’’ Instead, it urged, ‘‘interpretation will be a matter of common sense and good faith.’’ International Committee of the Red Cross 1987, para 2198. 56 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict 286 (1974–1977) [hereinafter Official Records]. 57 Rome Statute of the International Criminal Court, art 8.2(b)(xxiii), July 17, 1998, 2187 U.N.T.S. 3 [hereinafter ICC Statute]. 58 Geneva Convention Relative to the Treatment of Prisoners of War, Article 23, Aug. 12, 1949, 6 U.S.T. 3316,75 U.N.T.S. 135 [hereinafter GC III]. 59 Geneva Convention Relative to the Treatment of Prisoners of War, Article 9, July 27, 1929, 118 U.N.T.S. 343 [hereinafter 1929 GC] (‘‘No prisoner may at any time be … employed to render by his presence certain points or areas immune from bombardment.’’). 60 GC IV, supra note 11, articles 28 and 4, respectively.

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Article 19 of the First Convention imposes an obligation to situate, ‘‘as far as possible,’’ medical units and establishments ‘‘in such a manner that attacks against military objectives cannot imperil their safety.’’61 Article 12.4 of Additional Protocol I transforms this implied prohibition on shielding into an unambiguous one: ‘‘Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.’’62 The prohibition applies to both military and civilian facilities,63 and includes use of the wounded and sick.64 No specific textual prohibition of human shielding exists in the law of noninternational armed conflict.65 However, Additional Protocol II, Article 13.1, provides that ‘‘the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.’’66 As the use of human shields unnecessarily places civilians at risk, the practice would violate this provision. Moreover, Article 4.2(c) of Additional Protocol II and Common Article 3(1)(b) to the 1949 Geneva Conventions prohibit hostage taking, which is equally a violation in international armed conflict.67 Arguably, those seized and forced to act as shields qualify as hostages.68

61

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, article 19, Aug. 12, 1949, 6 U.S.T 3114, 75 U.N.T.S. 31 [hereinafter GC I]. See also GC IV, supra note 11, article 18 (regarding civilian hospitals). 62 AP I, supra note 34, article 12.4. Such use would also amount to misuse of the protected emblem if military equipment or troops were located within the facility. Id. article 38; GC I, supra note 61, article 42; Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annexed Regulations, article 23(f), Oct. 18, 1907, 205 Consol. T.S. 277; Hague Convention (II) with Respect to the Laws and Customs of War on Land, Article 23(f), July 29, 1899, 1 Am J Int L. 129 (1907 Supp.). 63 AP I, supra note 34, article 12.2. 64 International Committee of the Red Cross 1987, para 540. 65 A rule on human shields was proposed for inclusion in Additional Protocol II, but did not survive the Diplomatic Conference. Official Records, supra note 56, at 321. 66 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Article 13.1, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II]. 67 Id. Article 4.2(c). See also Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Article 3(1)(b), Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; GC I, supra note 61, Article 3(1)(b); GC III, supra note 58, Article 3(1)(b); GC IV, supra note 11, article 3(l)(b). The act is a war crime in noninternational armed conflict pursuant to the ICC Statute, Article 8.2(c)(iii). Regarding international armed conflict, see GC IV, supra note 11, Articles 34, 147; AP I, supra note 34, Article 75.2(c); ICC Statute, Article 8.2(a)(viii). The prohibition on hostage taking is customary in both international and non-international armed conflict. CIHL, supra note 34, rule 96; NIAC Manual, supra note 18, para 1.2.4 (non-international). 68 The ICRC Commentary defines hostages as ‘‘persons who are in the power of a party to the conflict or its agent, willingly or unwillingly, and who answer with their freedom, their physical integrity or their life for the execution of orders given by those in whose hands they have fallen, or for any hostile acts committed against them.’’ International Committee of the Red Cross 1987, para 4537. On the use of hostages, see Elliot 1995.

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While a number of key ‘‘warfighting’’ States, including the United States and Israel, are non-Parties to Additional Protocols I and II, the prohibition on human shielding nevertheless irrefutably constitutes customary international humanitarian law.69 Rule 97 of the ICRC’s International Customary International Humanitarian Law study provides, ‘‘[t]he use of human shields is prohibited,’’ and contends the norm applies in both international and non-international armed conflict.70 Similarly, the San Remo Manual on the Law of Non-International Armed Conflict states, ‘‘[t]he use of civilians (as well as captured enemy personnel) to shield a military objective or operation is forbidden. It is also forbidden to use them to obstruct an adversary’s operations.’’71 Military manuals, although of variable valence in ascertaining custom,72 typically include such a ban.73 Two of the most recently promulgated manuals are paradigmatic. The 2007 version of the United States Navy/Marine Corps/Coast Guard’s Commander’s Handbook on the Law of Naval Operations notes, ‘‘[d]eliberate use of civilians to shield military objectives from enemy attack is prohibited.’’74 Its British counterpart, the Manual of the Law of Armed Conflict, replicates the Additional Protocol I, Article 51.7 text and extends the norm into non-international armed conflict.75 Various other sources offer further support for characterization of the norm as received international humanitarian law. The Rome Statute of the International Criminal Court styles ‘‘[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military 69

The U.S. State Department’s Deputy Legal Adviser suggested this was the U.S. position at an academic conference also attended by the Department’s Legal Adviser, Abraham Soafer. Matheson 1987, 426. The sole official pronouncement identifying those provisions of Additional Protocol I which the United States agrees are customary is Memorandum from the Service Judge Advocate Departments (International Law Divisions) to Assistant General Counsel (International), Office of the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications (May 8, 1986) (on file with author). The letter does not cite Articles 51.7 or 12.4 as customary. 70 CIHL, supra note 34, rule 97. 71 NIAC Manual, supra note 18, para 2.3.8. 72 See discussion in the U.S. response to the CIHL, supra note 34. Letter to Dr. Jakob Kellenberger, President, ICRC, from John B. Bellinger, III, Legal Adviser, Dep’t of State, and William J. Haynes, Gen. Counsel, Dep’t of Def. (Nov. 3, 2006) (on file with author). 73 Manuals must be cautiously employed in identifying customary norms lest policy decisions be confused with opinio juris. Moreover, it is often unclear whether a manual provision reflects customary law or only a requirement of a convention to which the State is a Party. For instance, the United Kingdom is Party to Additional Protocol I, thereby begging the question of which of its Manual’s provisions reflecting that convention also represent customary law. See U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) [hereinafter U.K. Manual]. 74 U.S. Navy, U.S. Marine corps and U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations (NWP 1-14 M/MCWP 5-12.1/COMDTPUB P5600.7A) (July 2007), at para 8.3.2 [hereinafter NWP I-14 M]. 75 U.K. Manual, supra note 73, paras 5.22, 15.24.1.

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operations’’ as a war crime in international armed conflicts.76 Inclusion in the Rome Statute represents an indication, albeit not a definitive one, of opinio juris.77 So too does the widespread domestic criminalization—either legislatively or by virtue of becoming Party to the Rome Statute—of the use of human shields.78 Shielding with protected persons even constitutes an offense triable before the Guantánamo Military Commissions.79 In terms of ‘‘soft law,’’ the General Assembly, Security Council and other United Nations entities have adopted numerous resolutions condemning the use of human shields.80 For instance, in December 1991, the General Assembly labelled Iraq’s resort to shielding ‘‘a most grave and blatant violation of international law.’’81 More recently, the Security Council has condemned ‘‘use by the Taliban and other extremist groups of civilians as human shields.’’82 The Customary International Humanitarian Law study similarly asserts that the Article 58 provisions constitute a restatement of customary law applicable in international armed conflict. Rule 23 provides that ‘‘[e]ach party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas,’’ whereas Rule 24 requires that Parties ‘‘to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.’’83 As to non-international armed conflict, the study suggests

76

ICC Statute, Article 8(2)(b)(xxiii). On the Statute’s delineation of war crimes, see Bothe 2002. Interestingly, Canada’s war crimes statute expressly provides that the offenses listed in Article 8.2 of the ICC Statute are war crimes in customary international law. Crimes Against Humanity and War Crimes Act, 2000 S.C., Chap. 24, § 4(4) (Can.). 78 As an example, Australia’s International Criminal Court (Consequential Amendments) Act (2002), Schedule 1, § 268.65 provides: 77

(1) A person (the perpetrator) commits an offence if: (a) the perpetrator uses the presence of one or more civilians, prisoners of war, military, medical or religious personnel or persons who are hors de combat; and (b) the perpetrator intends the perpetrator’s conduct to render a military objective immune from attack or to shield, favour or impede military operations; and (c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict. Penalty: (a) if the conduct results in the death of any of the persons referred to in paragraph (a)— imprisonment for life; or (b) otherwise—imprisonment for 17 years. (2) In this section: religious personnel includes non-confessional, noncombatant military personnel carrying out a similar function to religious personnel. 79 Military Commissions Act of 2006, 10 U.S.C. §§ 950v(9)-(10) (2007) [hereinafter MCA]. 80 S.C. Res. 687, U.N. Doc. S/RES/687 (April 3, 1991); C.H.R. Res. 1992/71, supra note 9; C.H.R. Res. 1995/89, supra note 16. 81 G.A. Res. 134, para 2(c) U.N. Doc. A/RES/46/134 (Dec. 17, 1991). 82 S.C. Res. 1776, para 82 U.N. Doc. S/RES/1776 (Sept. 19, 2007). 83 CIHL, supra note 34, rules 23 and 24.

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the rules are ‘‘arguably’’ customary.84 Similar obligations appear in the military manuals of many countries, including Canada, the United States and the United Kingdom.85 Moreover, in Kupreskic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that the Article 58 requirements are ‘‘now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol.86 Case law on human shielding is sparse, although that which exists categorically affirms the prohibition.87 In 1946, a British Military Court in Germany convicted General Kurt Student for mistreatment of prisoners of war by, inter alia, using them as a screen for advancing German paratroopers during the 1941 Battle of Crete.88 Two years later, a U.S. military tribunal addressed shielding in the High Command case.89 During trial, the tribunal examined the war diary of General Hermann Hoth, one of the defendants. In a 1941 entry, Hoth, who commanded units against Soviet forces, wrote: The billeting of PoW’s captured in the city and some of the inhabitants of the country in the buildings used by our own troops has proven to be a useful counter measure against time bombs put there by the enemy. It has been our experience, that, as a result of this measure, the time bombs were found and rendered harmless in a very short time by the prisoners and/or inhabitants of the country.90

84

No analogous provision appears in Additional Protocol II, although civilians do ‘‘enjoy general protection against the dangers arising from military operations.’’ AP II, supra note 66, Article 13.1. With regard to the obligation to safeguard cultural property during non-international armed conflict, see Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Article 8, Mar. 26, 1999, in 38 International Legal Materials 769 (1999). 85 Canada, The Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level (Publ: B-GG-005-027/AF-021) (March 21, 2001), Chap. 6, para 38; NWP 1-14 M, supra note 74, para 8.3.2 (as to the removal obligation) [hereinafter Canadian Manual]; U K manual, supra note 73, para 5.36. 86 Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Chamber, Judgment, paras 524–525 (Jan. 14, 2000). 87 As to civil liability of a State, see Hill v. Republic of Iraq, 175 F. Supp. 2d. 36 (D.D.C. 2001), confirming standing to sue Iraq under U.S. law for being held as a shield during the First Gulf War, and ordering punitive damages paid by the Republic of Iraq and Saddam Hussein. 88 British Military Court, Luneberg, Student Case (Case No. 24) (May 6–10, 1946), in 4 Law Reports of Trials of War Criminals: Selected And Prepared By The United Nations War Crimes Commission 118 (1947). Student was not convicted of the offense, although a subsequent trial by a U.S. tribunal opined, ‘‘if proved, the mere act of forcing prisoners of war to go ahead of advancing enemy troops, thereby acting as a shield to the latter, would itself constitute another type of war crime.’’ U.S. Military Tribunal, Nuremberg, Trial of Wilhelm Von Leeb and Thirteen Others (Case No. 72, High Command Trial) (Dec. 30, 1947–Oct. 28, 1948), in 12 Law Reports of Trials of War Criminals: Selected and Prepared by the United Nations War Crimes Commission 105 (1949) [hereinafter High Command Trial]. 89 High Command Trial, supra note 88, at 105. 90 Id. at 104.

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The tribunal opined, ‘‘to use prisoners of war as a shield for the troops is contrary to international law,’’ although it failed to similarly characterize the use of civilians.91 The ICTY has dealt with human shielding on multiple occasions, although typically treating it as a variant of other war crimes. In Blaskic, the ICTY found the accused engaged in inhumane and cruel treatment by using villagers as human shields for a military headquarters.92 The inhumane treatment constituted a ‘‘grave breach’’ of the 1949 Geneva Conventions,93 whereas cruel treatment comprised a war crime in violation of Common Article 3(1)(a) of those instruments.94 By contrast, in Aleksovski it characterized shielding as ‘‘an outrage on personal dignity’’ contrary to Common Article 3(1)(c).95 In the ICTY’s most well-known pending case, Richard Goldstone, the former Prosecutor, alleged in his indictment of Radovan Karadzic (President of the Bosnia Serb area) and Ratko Mladic (Chief of its Armed Forces) that ‘‘Bosnian Serb military personnel physically secured or otherwise held the UN peacekeepers against their will at potential NATO air targets, including the ammunition bunkers at Jahorinski Potok, the Jahorina radar site and a nearby communications centre in order to render these locations immune from further NATO airstrikes’’ in 1995.96 On these facts, Goldstone charged the two with ‘‘grave breach’’ of international humanitarian law by inhuman treatment and a ‘‘violation of the laws or customs of war’’ by cruel treatment.97 Mladic remains at large, and Karadzic was arrested in July 2008.

91

Id. In making this assertion, the tribunal cited on-point black letter law concerning the use of prisoners of war. 1929 GC, supra note 59, Article 9. 92 Prosecutor v. Blaskic, Case No. IT-95-14-T, Trial Chamber, Judgment, para 716 (Mar. 3, 2000). The ICTY held that the status of the shield was irrelevant to whether a war crime had been committed. Id., para 186. Additionally, it found the acts constituted the war crime of hostage taking. Id. para 750. In Kordic, the tribunal also found the use of human shields to constitute inhumane treatment. Prosecutor v. Kordic, Case No. IT-95-14/2, Trial Chamber, Judgment (Mar. 3, 2000). 93 A grave breach requires Parties to the Conventions to search for those who have committed or ordered certain serious violations of the conventions and to either prosecute them or hand them over to another Party that will do so. GC I, supra note 61, Articles 49–50; AP II, supra note 66, Articles 50–51; GC III, supra note 58, Articles 129–130, GC IV, supra note 11, Articles 146–147. 94 Common Article 3, supra note 67. 95 Prosecutor v. Aleksovski, Case No. IT-95-14/I-T, Trial Chamber, Judgment, para 229 (June 25, 1999). The distinction between inhuman treatment, cruel treatment and committing an outrage on personal dignity is primarily one of where the prohibition is found in international humanitarian law instruments, at least insofar as shielding is concerned. 96 Prosecutor v. Karadzic and Mladic, Case No. IT-95-5-I, Indictment, para 47 (July 24, 1995). 97 Id. paras 46–48. The tribunal confirmed the counts contained the indictment (as well as that of Nov. 16, 1995). See Prosecutor v. Karadzic and Mladic, Case Nos. IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence (July 11, 1996).

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Discussion has thus far focused on the use of shields in defensive operations. However, they may also be employed to enhance ‘‘offensive’’ ones. As an example, during Operation Iraqi Freedom the Saddam Fedayeen (irregular Iraqi forces) often engaged Coalition forces from behind women and children, many of whom were forcibly seized for the purpose.98 Such practices are unquestionably unlawful. It matters not whether the attempt to deter or block an enemy’s use of force occurs while in a defensive or offensive mode. A normatively more unsettled situation involves the use of protected persons in cases other than classic shielding. One such tactic, known as ‘‘early warning,’’ involved Israeli use of civilians in the West Bank when arresting suspected terrorists. Early warning comprised, an operational procedure used in actions to apprehend wanted persons. It allows soldiers to be assisted by local Palestinian residents so as to reduce the danger of injury to innocent civilians and to the wanted persons themselves (to make it possible to apprehend them without shedding blood). The use of a local resident is intended to give early warning to the occupants in the house and enable innocent persons to leave the building and for wanted persons to give themselves up before it would be necessary to use force, which is liable to endanger lives.99

In 2005, the Israeli Supreme Court reviewed the practice in Adalah v. GOC Central Command.100 The petitioners, a group of human rights organizations, alleged the Israel Defence Force (IDF), forced Palestinian residents to walk through and scan buildings suspected to be boobytrapped, and in which it ordered them to enter certain areas before combat forces, in order to find wanted persons there; also described are cases in which the army used residents as a ‘human shield’ which accompanied the combat forces, to serve as a shield against attack on those forces. Thus, residents were stationed on porches of houses where soldiers were present, in order to prevent gunfire upon the houses.101

By the time the Court heard the case on the merits, the Israeli military had forbidden the use of ‘‘civilians as a ‘live shield’ against live fire or attacks by the Palestinian side.’’102 It also had issued an ‘‘Early Warning’’ operational directive that provided, in relevant part,

98

Off Target, supra note 10, at 67–69. Israeli Defense Forces, Military Order on Operational Instructions for ‘‘Prior Warning,’’ (B’Tselem trans., 2002). http://www.btselem.org/english/legal_documents/advanced_warning_ procedure.doc. 100 HCJ 3799/02 Adalah v. GOC Central Command [2005] (Not yet published). English trans. http://elyonl.court.gov.il/files-eng/02/990/037/a32/02037990.a32.pdf (last visited Feb. 23, 2009). For an analysis of the early warning procedure predating issuance of the opinion, see Otto 2004. 101 Adalah v. GOC Central Command [2005] para 1. 102 Id. para 2. 99

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[s]olicitation of a local resident’s assistance is intended to allow innocent persons to leave the building and/or allow the wanted persons to turn themselves in before there is a need to use force, which is liable to endanger human life. For that purpose, one may ask a local resident to approach the house, to give notice to those in the house that the army is present and to warn them that if they do not leave the house, the army is liable to use force in order to arrest the wanted persons.103

The order reiterated the legal prohibition on using residents as ‘‘live shields.’’ However, the petitioners claimed the IDF continued to use human shields.104 The Court began by stating the obvious: ‘‘[It is] clear that the army is not permitted to use local residents as a ‘human shield’.’’ As authority it cited Article 28 of the Fourth Geneva Convention and Article 51.7 of Additional Protocol I.105 On the basis of Article 23 of the 1907 Hague Regulations and Article 51 of the Fourth Geneva Convention, which prohibit coercing enemy civilians to take part in military operations, it further found the early warning procedure unlawful when the residents involved had not consented.106 Reliance by the Court on Article 28 was meaningful in terms of the norm’s scope. Recall that the article prohibits the use of human shields to render ‘‘points or areas immune from military operations.’’107 Early warning, by contrast, involved protection for individual soldiers and specific operations. Additionally, the acts in question, such as booby-trapping, differ from classic ‘‘military operations.’’

103

The order provided that: A. The civilian population has no obligation to assist the IDF in warning civilians of attack. B. Contact, and persuasion, shall be exclusively verbal. C. It is strictly forbidden to use force or violence toward a local resident or others, in order to secure said assistance. D. It is strictly forbidden to threaten a resident, or other people, that physical violence, arrest, or other means will be used against them. E. It is strictly forbidden to hold people ‘hostage’ in order to secure the assistance of a local resident. F. If a local resident refuses-under no circumstances is provision of assistance to be forced.

Id. para 6 (emphasis in original). 104 Id. para 12. 105 Id. para 21. 106 Id. para 22. Note that doing so is a war crime by the ICC Statute. ICC Statute, Article 8.2.b.xv. The ICTY interpreted the prohibition on the use of prisoners of war and civilians in occupied areas as prohibiting compelled tasks that are ‘‘connected with war operations or have a military character or purpose.’’ Prosecutor v. Blaskic, Case No. IT-95-14A, Trial Chamber, Judgment, para 597 (July 29, 2004) (citing GC III Commentary). See Geneva Commentary, supra note 4, at 294; see also GC IV, supra note 11, Article 51. 107 GV VI, Article 28, supra note 11.

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Albeit liberal, the Court’s interpretation was sound. The ICRC commentary to Article 28 specifically references the use of shields to screen troops,108 thereby dispelling any possible claim of limitation to locations or military objects. It also defines ‘‘military operations’’ as ‘‘any acts of warfare,’’109 a phrase that doubtlessly encompasses violent acts directed against Israeli forces. Although the commentary to Article 28 fails to define the term ‘‘immune,’’ it would have been unsupportable for the Court to interpret it as requiring a target to be un-attackable as a matter of law, for instance, through operation of the proportionality principle.110 Many of the ‘‘conduct of hostilities’’ norms that today ‘‘immunize’’ a target as a matter of law were not codified (or even accepted as customary) when the Fourth Geneva Convention came into law in 1949; thus, such an interpretation would be historically suspect. More to the point, the commentary states that the requisite intent ‘‘is to divert enemy fire,’’ thereby suggesting a military, vice juridical, understanding of ‘‘immune.’’111 Clearly, Article 28 encompasses any use of persons protected by the Fourth Geneva Convention as shields, regardless of whether their presence would legally immunize the intended target. The practice of employing consenting civilians to relay early warnings proved more difficult to resolve. The Court acknowledged that the procedure might obviate the need to use force. Despite this humanitarian result, it found unlawful their use as ‘‘shields’’ to walk through buildings suspected of being booby-trapped, enter areas in advance of soldiers, and accompany Israeli forces to prevent attacks, or convey warnings to surrender.112 The Court pointed to Article 8 of the Fourth Geneva Convention, which bars protected persons from renouncing their protection under that convention. It also cited those articles discussed earlier which disallow an occupied population’s use for military purposes, as well as the general principle requiring separation of the civilian population from military activities. With regard to the purported consent, the Court cautioned that the occupying power’s dominant position begs the question of whether the consent in question is freely given in such circumstances. Finally, it warned that the risk to residents communicating early warnings cannot accurately be assessed in advance.113 This is true not only as to the physical dangers associated with a specific operation, but also as to potential retaliation for ‘‘collaborating’’ with the occupying forces.114 The reliance on Article 8 in Adalah should not be overplayed. To begin with, the norm applies only in situations covered by the Fourth Geneva Convention, primarily 108

Geneva Commentary, supra note 4, at 208. Id. at 209. Further, the Commentary to Article 48 of Additional Protocol I defines the term ‘‘operations’’ as those ‘‘during which violence is used,’’ a very inclusive definition. international committee of the red cross 1987, para 1875. 110 See infra note 130 and accompanying text. 111 Geneva Commentary, supra note 4, at 208. 112 HCJ 3799/02 Adalah v. GOC Central Command [2005] IsrSC, translated at http://elyonl. court.gov.il/files-eng/O2/990/037/a32/02037990.a32.pdf (last visited Feb. 23, 2009), paras 23, 25. 113 Id. para 24. 114 Id. 109

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occupation. More significantly, the situation envisioned by Article 8 differs from that at issue in Adalah.115 The drafters were responding to the risk that a change in an individual’s status (rather than his conduct) might deprive him of ‘‘rights’’ under the Convention,116 a point apparent in the recognition by Article 8’s commentary that it ‘‘provide[s] certain categories of people with a status which does not depend on any political events which may occur.’’117 Furthermore, the Court appeared to have neglected the fact that, in international humanitarian law, certain activities, most notably direct participation in hostilities, deprive a protected person of the law’s benefits.118 Ultimately, when considering Adalah’s applicability to the human shields issue writ large, the key lies in the Court’s focus on consent, especially the fact that an occupying force was involved. In other words, the circumstances precluded a fair assessment of whether the actions were truly volitional. Such skepticism is well-justified in many human shields situations, for, as shall be seen, a protected person’s willingness to serve as a shield can determine the action’s legal character. Situations involving shields who act voluntarily at the urging of a Party to the conflict (or with its complicit acquiescence) are normatively more complex.119 For instance, in November 2006 Hamas radio issued an appeal for women to converge on a mosque in Beit Hanoun where Israeli security forces had trapped militants. The Palestinian women entered the mosque, clothed some of the militants in female attire, and acted as shields for them as they escaped.120 That ‘‘voluntary shielding’’ only occurs, as a matter of law, consequent to the shield’s intent to frustrate enemy operations cannot be overemphasized. Consider a military force based in a village. The mere presence of villagers does not render them voluntary shields. This is so even if they elect to remain in the village despite an opportunity to depart. Those who remain may be too elderly or infirm to leave. They may be too frightened to leave—fleeing from the village may be dangerous. They may wish to remain in order to safeguard their property and possessions. Whatever the rationale for their presence, it is only when they refuse to depart because they wish to complicate the enemy’s actions that they qualify as voluntary shields. As recognized by the ICRC, it is ‘‘unlikely that [the shielding] norm was originally devised to cover an event where individuals acted knowingly and on their own initiative.’’121 Yet, the mere fact that voluntary shielding was not in the contemplation of the drafters does not necessarily suffice to remove voluntary shielding from its reach. International humanitarian law is, and must remain, 115

See Geneva Commentary, supra note 4, at 73–75. For example, through debellatio changing the legal character of territory. See Dinstein 2005, 48–49. 117 Geneva Commentary, supra note 4, at 73. 118 See infra notes 122–124 and accompanying text. 119 See supra note 12 and accompanying text for an example. 120 Gaza Women Killed in Mosque Siege 2006. 121 International Committee of the Red Cross/International Institute of Humanitarian Law (2007) 30th San Remo round table on current issues of international humanitarian law: the conduct of hostilities-background document 9 (Aug. 2007) (unpublished report on file with author). 116

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The Defender’s Obligations

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responsive to the evolving nature of warfare. Does the prohibition on human shielding include the voluntary shields who increasingly appear in the contemporary battlespace? Whether it does arguably depends on characterization of the shields. By Additional Protocol I, Article 51.3, ‘‘[c]ivilians shall enjoy the protection afforded by this Section [against military operations], unless and for such time as they take a direct part in hostilities.’’122 The protections referred to include the prohibition on their use as human shields, at Article 51.7. An analogous direct participation rule applies in non-international armed conflict.123 The norm is customary in both categories of conflict, although significant disagreement exists over the acts that rise to the level of direct participation and the duration of the loss of protection.124 For the purposes of analyzing the defender’s obligations vis-à-vis human shielding, the key question is whether the volunteers are direct participants in hostilities. Two possibilities exist. One approach insists that shielding falls short of direct participation because it fails to meet the requisite qualitative threshold.125 Specifically, proponents assert that shields are neither defending a military objective in the sense of posing a threat to the attacker, nor physically impeding attack, for instance by deliberately blocking passage of enemy forces across a bridge. In their view, simply causing the attacker moral pause or creating a legal barrier (through operation of the proportionality principle or precautions in attack requirements) is insufficient. Since the volunteers are not directly participating, Article 51.3 does not apply; thus, they benefit from Article 51.7’s protections and their use as shields constitutes a violation of the norm. Some basis exists for this interpretation. The Commentary to Additional Protocol I explains that direct participation ‘‘implies a direct casual relationship

122

AP I, supra note 34, Article 51.3. AP II, supra note 66, Article 13.3. 124 CIHL, supra note 34, rule 6; NIAC Manual, supra note 18, paras 1.1.3, 2.1.1.1 and accompanying commentary. The notion of direct participation also appears in Common Article 3 to the four 1949 Geneva Conventions (‘‘[p]ersons taking no active part in hostilities’’). See, e.g., GC III, supra note 58, Article 3.1. Although Common Article 3 and Protocol II employ different terminology (‘‘active’’ and ‘‘direct,’’ respectively), AP II, supra note 66, Article 4. 1, the International Criminal Tribunal for Rwanda (ICTR) has reasonably opined that the terms are so similar they should be treated synonymously. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para 629 (Sept. 2, 1998). Under the ICC Statute, it is a war crime to ‘‘intentionally direct[] attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’’ in international armed conflict. ICC Statute, Article 8.2(b)(i). Article 8.2(c) replicates Common Article 3 for the purposes of non-international armed conflict. Id. Article 8.2(c). 125 Quéguiner 2006, 815–817. The debate over whether voluntary shields are directly participating in hostilities has become a major point of contention in the ongoing study of direct participation sponsored by the International Committee of the Red Cross and the T.M.C. Asser Institute. See, e.g., ICRC Summary Report 2006, 46–48; ICRC Summary Report 2004, 6– 7. The ICRC was expected to release the final ‘‘Interpretive Guidance’’ on direct participation in late 2008, but the report was unavailable at the time of publication. 123

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between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.’’126 Later, it describes such participation as ‘‘acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.’’127 Human shields rarely pose a direct physical risk to combatants, and seldom physically obstruct their operations. Advocates of the alternative approach—that voluntary human shields qualify as direct participants—correctly respond that the aforementioned position contorts the architecture of international humanitarian law and flies in the face of military logic. An attacker may only strike military objectives, including combatants, and civilians directly participating in the hostilities.128 Humanitarian law defines ‘‘military objectives’’ as ‘‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.129 A voluntary shield takes affirmative steps to frustrate harm to objects (or persons) that make such a contribution. In doing so, he contributes to military action in a direct causal way; it is difficult to style his behavior as anything but direct participation. Indeed, from a practical military point of view, a civilian who takes up arms may well be less effective in deterring or defending against attack than one who shields. An attacker willing to face the risks posed by enemy defenses can always attempt to engage a defended target. On the other hand, as a matter of law, the attacker may not strike a target if the operation would likely result in injuries or deaths of civilians that are excessive relative to the attack’s anticipated military advantage.130 Doing so would constitute a war crime in both international and non-international armed conflict.131 Thus, unless voluntary shields are characterized as direct participants excluded from the proportionality equation, a sufficient number of them can absolutely immunize a target from attack. Further, the technology fielded by asymmetrically advantaged military forces has increasingly rendered defensive systems 126

International Committee of the Red Cross 1987, at 516. Id. at 618. 128 AP I, supra note 34, Articles 48, 51.2, 52.1; AP II, supra note 66, Article 4.2(a); CIHL, supra note 34, rules 1, 7; NIAC Manual, supra note 18, Sct. 2.1.1; NWP 1-14 M, supra note 74, 1 paras 8.2, 8.3; UK Manual, supra note 73, paras 5.3, 5.4; Canadian Manual, supra note 85, paras 406, 411; ICC Statute, Articles 8.2(b)(i) and (ii), 8.2(e)(i). 129 AP I, supra note 34, Article 52.2; CIHL, supra note 34, rule 8; NIAC Manual, supra note 18, para 1.1.4; UK Manual, supra note 73, para 5.4.1; Canadian Manual, supra note 85, Article 406(2). On the topic generally, see Dinstein 2002a; Robertson Jr. 1998. 130 AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b); CIHL, supra note 34, rule 14; NIAC Manual, supra note 18, para 2.1.1.4; NWP 1-14 M, supra note 74, para 8.3.1; UK manual, supra note 73, para 5.33; Canadian Manual, supra note 85, Article 413. The rule of proportionality is undoubtedly an element of customary international law, a fact highlighted by Judge Rosalyn Higgins in her dissenting opinion in Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 587 (July 8) (dissenting on unrelated grounds). On proportionality generally, see Dinstein 2004, 119–125; Schmitt 1997, 55–61. 131 ICC Statute, Article 8.2(b)(iv). 127

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The Defender’s Obligations

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ineffective, while the ‘‘CNN effect’’ generated by images of civilian casualties has enhanced the effectiveness of shields in precluding attack, particularly given adoption of lawfare strategies by weaker parties.132 The Israeli Supreme Court took this stance in its landmark ‘‘targeted killings’’ judgment, authored by President (Emeritus) Barak: Certainly, if [human shields] are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in hostilities.133

While the judgment applied only to international armed conflict, the Manual on Non-International Armed Conflict adopts an analogous approach for internal conflicts: ‘‘Should civilians voluntarily elect to shield a military objective or obstruct military operations, they would in almost all circumstances be taking an active (direct) part in hostilities, and, for the purposes of this Manual, could be treated as fighters.’’134 Characterization of voluntary human shielding as direct participation comports well with the balance between military necessity and humanitarian considerations that underpins all international humanitarian law. Because Article 51.3 denies civilians who so participate ‘‘the protection afforded by this Section,’’ voluntary participants are not encompassed in the prohibition on shielding. Therefore, neither encouraging voluntary shielding nor acquiescing therein contravenes Article 51.7 or its customary counterpart. Moreover, since civilians who participate benefit from no other protection (specifically proportionality or precautions in attack safeguards), their presence would not immunize military operations, as envisioned in the Article. Lest this seem a paradoxical result, it must be recalled that no prohibition exists in international humanitarian law barring a party from using directly participating civilians.135 Two variations on the approaches set forth above merit brief comment. With regard to the first, it can be argued that Article 51.7 supplies civilians with no protection beyond that already enjoyed by virtue of the principle of distinction. Instead, the Article ensures that parties to the conflict lawfully derive no benefit from actions placing civilians at greater risk. Characterized in this fashion, it would not matter whether the shields are direct participants because Article 51.7 ‘‘protects’’ the side facing them, that is, the attacker. This position emphasizes the 132

See Schmitt 2007a, at 458–468. HCJ 796/02 The Public Committee against Torture v. Israel, Judgment (Dec. 13, 2006), para 36 (citing Schmitt 2004b, 531; Schmitt 2004a). 134 NIAC Manual, supra note 18, cmt. to para 2.3.8. 135 The issue of whether civilians violate international humanitarian law by directly participating is highly contentious. Prosecution for direct participation is authorized before the Military Commissions convened in Guantánamo, Cuba. MCA, 10 U.S.C. §§ 950(v)(13), (15) (2007). The better position is that direct participation is not a violation, but direct participants may be prosecuted for the acts that comprise the direct participation if those acts violate international or domestic law. Dinstein 2004, at 29–32; Schmitt 2007a, at 520–521. 133

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military necessity component of the military necessity-humanitarian considerations balance.136 The title to Article 51 alone, ‘‘Protection of the Civilian Population,’’ argues against this interpretation. True, the notion of direct participation, also based in Article 51, can be viewed as a nod to military necessity. Yet, it more accurately amounts to a qualifying criterion for application of the Article’s protections. Furthermore, the Commentary to Additional Protocol I states that ‘‘[t]his provision affords measures of protection to the whole of the civilian population and all civilians, thus extending to them measures which already exist for two categories of persons: prisoners of war and civilians protected by the Fourth Convention.’’137 A variation of the second approach focuses on the word ‘‘civilian(s)’’ in Article 51.7. Proponents argue that civilians who directly participate in hostilities lose their civilian status and become unlawful combatants.138 Advocates of this approach include such prominent scholars as Professor Yoram Dinstein139 and certain governments, most notably the United States.140 Since voluntary human shields directly participate in hostilities, they do not qualify as civilians, and the terms of Article 51.7 do not come into play. However, the distinction between directly participating civilians and unlawful combatants bears primarily on detention matters. Both characterizations lead to exactly the same results, vis-à-vis both the defender’s and attacker’s obligations regarding human shields. The preceding discussion demonstrates that specific intent to use civilians or other protected persons to shield represents the norm’s sine qua non. This begs the question of whether ‘‘the nonreaction of a belligerent to voluntary human shields can be assimilated to the use of the presence or movements of civilians in order to protect military objectives, or to cover, promote or hinder military operations.’’141 136

This position was taken by several international humanitarian law experts in discussions. International Committee of the Red Cross 1987, para 1986; see also GC III, supra note 58, Article 23 (providing protections for prisoners of wars); GC IV, supra note 11, Article 28 (‘‘The presence of a protected person may not be used to render certain points or areas immune from military operations.’’). 138 See generally Watkin 2005. 139 Dinstein 2004, at 27–33; see also Dinstein 2002b, 247–248. But see Dörmann 2003 (arguing that civilians who directly participate in hostilities do not necessarily lose their civilian status). 140 For example, the Military Commissions Act defines an unlawful enemy combatant as ‘‘a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant …’’ MCA, 10 U.S.C. § 948a(l)(i) (2007); Hamdi v. Rumsfeld, 542 U.S. 502, 519 (2004) (‘‘We held that ‘[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.’’’ (quoting Ex parte Quirin, 317 U.S. 1, 37–38 (1942))); Hamdan v. Rumsfeld, 548 U.S. 557, 680–681 (2006); NWP I-14 M, supra note 74, para 8.2.2 (‘‘Unlawful combatants who are not members of forces or parties declared hostile but who are taking a direct part in hostilities may be attacked while they are taking a direct part in hostilities.’’). 141 International Committee of the Red Cross/International Institute of Humanitarian Law (2007), 30th San Remo round table on current issues of international humanitarian law: the conduct of hostilities-background document 9 (Aug. 2007) (unpublished report on file with author) at 9. 137

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The Defender’s Obligations

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Despite one expert commentator’s suggestion that the shielding ‘‘[p]rohibition also applies to military authorities’ passive indifference towards civilians’ voluntary presence or movements that would serve to shield military objectives,’’142 the requirement of specific intent would preclude mere passivity from amounting to a violation. Of course, the Article 58 requirements to remove civilians under one’s control, avoid locating military objectives near them, and take other necessary precautions to ensure their safety would still apply. Should doing so be ‘‘feasible’’ in the circumstances, the mere fact that the shields were acting voluntarily, and not at the behest of the defender, would not release that party from a duty to comply with the obligations. Finally, what of a scenario involving civilians voluntarily shielding contrary to the wishes, or at least without the active acquiescence, of the party on whose behalf they act?143 As noted, no violation of the human shielding prohibition occurs in situations involving truly consenting shields. However, is the defender nevertheless obliged under Article 58 to prevent them from acting in this manner? The answer is unconditionally ‘‘no’’ because of their status as direct participants. Article 51.3’s removal of the ‘‘protection afforded by this Section’’ would relieve the defender of any such obligation under Article 58.144

11.2 The Attacker’s Obligations As the United States prepared to launch military operations in early 1991, President George H.W. Bush announced that Iraq’s use of human shields to deter attacks on legitimate military targets would fail.145 Six years later, Zairian rebels, fighting to overthrow Mobuto Sese Seko, complained of armed individuals who regularly fired on them from within crowds of fleeing Rwandan refugees. In response, the rebels attacked refugee camps, often slaughtering the innocent occupants.146 This raises the issue of the extent to which the prohibition

142

Quéguiner 2006, at 815–816. These situations arise occasionally. For instance, see the cases of civilians on bridges in Belgrade, Grdelica and Novi Sad during Operation Allied Force. Serb Media: NATO Lies over Rapes 1999. 144 By the first approach, a duty to prevent shielding would attach. If voluntary shields retain full civilian protection because they are not directly participating, then Article 58 remains applicable. If a Party has an obligation to move civilians at risk, then analogously imposing one to prevent civilians from placing themselves at risk would seem sensible. Of course, the obligation would exist only to the extent ‘‘feasible’’ and no actions that would negatively affect military operations would be required. 145 Gulf War Report, supra note 9, at 703. 146 Block 2007, at 330–333. 143

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of human shielding by a defender affects the attacker’s operations as a matter of law. International humanitarian law governing attacks is highly complex.147 However, certain principles, mentioned earlier, apply directly to strikes involving human shields. Most importantly, the target, whether an object or personnel, must qualify as a military objective, a term that includes combatants and civilians directly participating in hostilities.148 Even if it does, the planned attack must comport with the principle of proportionality, prohibiting attacks ‘‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’’149 Lastly, an attacker complying with that principle must nevertheless also take feasible precautions in attack. This requirement mandates selection of those methods, means and targets that will likely yield the least incidental injury to civilians, assuming a comparable military advantage.150 The sole express provision bearing on the attacker’s obligations in shielding situations is Article 51.8 of Additional Protocol I: ‘‘Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.’’151 ICRC commentary 147 The complexity of international humanitarian law governing attacks is evidenced by the laws surrounding the use of shields and targeting. See Sassoli 2003; Schmitt 2003, 2005, 2006, 2007c. 148 See International Committee of the Red Cross 1987, para 2017 (on the inclusion of combatants). 149 AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b); see supra note 130 and accompanying text. 150 Article 57 provides, in relevant part:

1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) Those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of para 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects; … 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. AP I, supra note 34, Article 57; see CIHL, supra note 34, rules 15–21; NIAC Manual, supra note 18, para 2.1.2; NWP I-14 M, supra note 74, para 8.3.1; U K Manual, supra note 73, para 5.32; Canadian Manual, supra note 85, at 4–4. For a discussion of application of the requirements, see Quéguiner 2006; see also Dinstein 2004, at 125–128. 151 AP I, supra note 34, Article 51.8.

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to Article 12.4 adopts a parallel approach in relation to medical establishments and units employed as shields.152 However, the customary nature of the ‘‘shall not release’’ text remains a point of debate in contemporary international humanitarian law expert fora.153 The use of human shields does not necessarily bar attack on a lawful target.154 As with the defender’s obligations in shielding situations, when analyzing those borne by an attacker, it is necessary to distinguish between voluntary and involuntary shields. The interplay between voluntary human shielding and the notion of direct participation discussed earlier applies equally to an attacker’s obligations. Recall that the first approach treats voluntary shields as civilians entitled to all international humanitarian law protections. In particular, they enjoy immunity from direct attack pursuant to Additional Protocol I, Article 51.2, a universally accepted norm of customary law which provides that ‘‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack.’’155 Any anticipated harm to them during an attack on a military objective would also factor fully into the requisite proportionality analysis; there is no difference in evaluating excessiveness as between voluntary shields and incidentally present civilians. Regarding precautions in attack, harm to any human shields, including voluntary ones, would qualify as ‘‘incidental loss of civilian life’’ or ‘‘injury to civilians.’’156 Thus, an attacker which could feasibly minimize said harm (without forfeiting military advantage) by employing alternative means or methods of warfare, or striking a different target, would be obliged to do so, even in the absence of ‘‘innocent’’ civilians who might also be spared by the precautions.157 This approach enjoys strong support. For instance, in light of the peace activist human shields that travelled to Iraq during late 2002 and early 2003, Human Rights Watch cautioned,

152

International Committee of the Red Cross 1987, paras 539–540. Parks 1990, 163–168. 154 United States Air Force, Targeting (Doctrine Document 2-1.9) (June 8, 2006) at 90 [hereinafter AFDD 2-1.9]. 155 AP I, supra note 34, Article 51.2; AP II, supra note 66, Article 4.2(a); CIHL, supra note 34, rule 1; NIAC Manual, supra note 18, para 2.1.1; NWP I-14 M, supra note 74, para 8.3; UK Manual, supra note 73, para 5.3; Canadian Manual, supra note 85, at 4–5; ICC Statute, Articles 8.2(b)(i), 8.2(e)(i). 156 AP I, supra note 34, Article 57.2. 157 For instance, if civilian shields have been placed at an electrical generating facility, a commander should consider other targets the destruction of which will cut electricity to the military objective which he wishes to neutralize. As noted, though, alternatives must be feasible, a term which includes military common sense. It would be imprudent, for example, to expend a limited inventory of precision munitions early in a conflict, especially if intense urban operations, in which they would offer greater opportunity to preserve civilians and civilian objects, are expected in the future. 153

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[l]ike workers in munitions factories, civilians acting as human shields, whether voluntary or not, contribute indirectly to the war capability of a state. Their actions do not pose a direct risk to opposing forces. Because they are not directly engaged in hostilities against an adversary, they retain their civilian immunity from attack. They may not be targeted, although a military objective protected by human shields remains open to attack, subject to the attacking party’s obligations under IHL to weigh the potential harm to civilians against the direct and concrete military advantage of any given attack, and to refrain from attack if civilian harm would appear excessive.158

Human Rights Watch intentionally used the word ‘‘indirectly’’ to preclude characterization as direct participants. As noted in the context of the defender’s obligations, this position poses a major dilemma. According to the proportionality principle, a party using voluntary shields can absolutely immunize a target from attack as a matter of law. It is simply a matter of gathering enough human shields in the target area to render the resulting harm to them ‘‘excessive.’’ The second, and correct, approach to voluntary shields avoids this unsatisfactory result by treating them as direct participants in hostilities. The rationale for this position is set forth above.159 Since direct participants are lawful military objectives, voluntary human shields obviously do not merit consideration either in the proportionality assessment or during consideration of alternative plans of attack that might minimize harm to the civilian population. Some international humanitarian law experts protest that the approach opens the possibility of directly targeting voluntary shields.160 While accurate as a matter of law, doing so would serve little practical purpose. Quite aside from the negative publicity any such action would inevitably generate, attacking shields would violate the ‘‘economy of force’’ principle of war, which dictates that commanders should preserve assets for use against the most lucrative targets.161 In other words, wise commanders will not place forces at risk or waste weapons by directly targeting human shields when their actual objective is the object that the shields seek to protect. A third approach to voluntary shields ‘‘discounts’’ them in proportionality calculations and precautions in attack analyses. As it applies most conspicuously to treatment of involuntary shields, discussion thereof shall occur in that context.162 158 159 160 161

Human rights watch 2003a, 3. See supra notes 128–132 and accompanying text. Author’s discussions with other humanitarian law experts at various international meetings. U.S. Joint Doctrine provides, [t]he purpose of the economy of force is to allocate minimum essential combat power to secondary effects … Economy of force is the judicious employment and distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, defense, delays, deception, or even retrograde operations to achieve mass elsewhere at the decisive point and time.

Joint Chiefs of Staff 2008, at A-2. 162 See infra notes 170–180 and accompanying text.

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The Attacker’s Obligations

575

When a party intentionally takes advantage of international humanitarian law protections as a form of counter-targeting without the consent, or perhaps even knowledge, of the civilians in question, the act merits different treatment. As with the obligations of attackers confronting voluntary shielding, there are three possibilities. An extreme view urges that involuntary shields should be ignored in the proportionality considerations and precautions in attack analyses because the enemy has violated the law by using shields and, therefore, such use should not affect an attacker’s operations. In other words, the enemy should not benefit militarily from its unlawful conduct.163 However, international humanitarian law evidences scant precedent to support the loss of protected status by a civilian due to the wrongful acts of one of the parties to the conflict. The sole possible exception with regard to individuals is the law of reprisal,164 which permits a party victimized by international humanitarian law violations to violate that law itself in order to force its opponent back into compliance. Even this exception is highly controversial; Additional Protocol I, in particular, dramatically curtails its use for States Party.165 A polar opposite, and better, approach treats involuntary shields as civilians entitled to the full benefits of their international humanitarian law protections. Its foundational premise is that the relevant provisions operate in favor of individual civilians, not the parties to the conflict. Therefore, a party may not disregard civilians’ legal protections simply because of its opponent’s unlawful conduct. Additional Protocol I, Article 51.8, constitutes the linchpin of this position, for it expressly refuses to release a party facing shields from the legal obligations relevant to targeting.166 Thus, involuntary shields factor fully into proportionality and precautions in attack assessments. In fairness, the customary international law nature of the norm is, as noted, questionable.

163

This is an approach that occasionally surfaces in discussions with international humanitarian law experts and military affairs specialists. 164 Instead, international humanitarian law typically only contemplates the loss of protection due to the enemy’s unlawful conduct with regard to civilian objects. For instance, hospitals may be attacked (subject to proportionality and precautions in attack restrictions) if they house combatants, once a warning to desist has been ignored. AP I, supra note 34, Article 13.1. As an example, on March 25, 2003, U.S. Marines seized the hospital in Nasiriya. They confiscated 200 weapons and captured approximately 170 Iraqi soldiers. Dworkin 2003. 165 See AP I, supra note 34, Articles 20 (wounded, sick, shipwrecked), 51.6 (civilians and civilian population), 52.1 (civilian objects), 53(c) (cultural objects and places of worship), 54.4 (objects indispensable to the survival of the civilian population), 55.2 (the natural environment), and 56.4 (dams, dykes and nuclear electrical generating stations). Additional Protocol I went far beyond prior humanitarian law in prohibiting reprisals, a fact that led to U.S. opposition to the treaty. Parks 1990, at 94–101. The classic work on reprisals is Kalshoven 2005. 166 See supra note 151 and accompanying text.

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United States joint doctrine appears to adopt this position.167 Pursuant to Joint Publication 3-60, Joint Targeting: a defender may not use civilians as human shields in an attempt to protect, conceal, or render military objects immune from military operations or force them to leave their homes or shelters to disrupt the movement of an adversary. In these cases, the civilians have not lost their protected status and joint force responsibilities during such situations are driven by the principle of proportionality as mentioned above. In such cases, otherwise lawful targets shielded with protected civilians may be attacked, and the protected civilians may be considered as collateral damage, provided that the collateral damage is not excessive compared to the concrete and direct military advantage anticipated by the attack.168

Although this approach seems to dominate among international humanitarian law experts,169 a third also enjoys significant support. This view agrees that involuntary human shields retain immunity from attack, but suggests that they should, for the lack of a better term, ‘‘be discounted’’ when calculating incidental injury for proportionality and precautions in attack purposes. The United Kingdom’s Manual of the Law of Armed Conflict adopts this position: Even where human shields are being used, the proportionality rule must be considered. However, if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on those objectives.170

Elsewhere, it is even more unequivocal: ‘‘the enemy’s unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected.’’171 A similar approach has been endorsed in the ICRC’s model manual: ‘‘[t]he attacking commander is required to do his best to protect [civilians used to shield] but he is entitled to take the

167

The term ‘‘joint’’ refers to doctrine applicable to all of the military services. Joint Chiefs of Staff 2007, at E-2-E-3. United States Air Force judge advocates charged with advising operational commanders on targeting law also appear to adopt this view. The 2002 Air Force Operations and the Law text provides,

168

[S]tandards of conduct should apply equally to the attacker and defender. In other words, that the responsibility to minimize collateral injury to the civilian population not directly involved in the war effort remains one shared by the attacker and the defender; and that the nation that uses its civilian population to shield its own military forces violates the law of war at the peril of the civilians behind whom it hides … At the same time, however, targeteers and judge advocates should consider the necessity of hitting the particular target, the expected results v. expected collateral damage, and ways to minimize civilian casualties, if possible. Department of the Air Force, Judge Advocate General’s Department, Air Force Operations and the Law 293 (2002). 169 See ICRC Summary Report 2006. 170 UK Manual, supra note 73, para 2.7.2. 171 Id. para 5.22.1.

11.2

The Attacker’s Obligations

577

defending commander’s actions taken into account when considering the rule of proportionality.’’172 In his 1990 classic work on air warfare, W. Hays Parks commented on the relationship between the Article 51.7 prohibition on shielding and the Article 51.8 caveat that a violation of the norm does not release the other side from its own legal obligations. Protocol I fails to state the fact that the illegal act—the violation of Article 51(7)—is the crime that places innocent civilians at risk, while attack of a lawful target is a legitimate act authorized by the law of war. While an attacker facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions to minimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a result of the illegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility with regard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue to violate the law of war by exposing other civilians to similar risk.173

Note that Parks does not deny that care should be taken to spare civilian shields. However, if the involuntary shields are civilians, he is concerned lest the attacker have to bear the additional responsibility of avoiding injury to them. If the involuntary shields are civilians deserving of some protection, what obligations does the attacker continue to have regarding them? Professor Yoram Dinstein builds on Parks’ work to answer the question. [T]he principle of proportionality remains prevalent. However, even if that is the case, the actual test of excessive injury to civilians must be relaxed. That is to say, the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that—if an attempt is made to shield military objectives with civilians—civilian casualties will be higher than usual.174

His rationale is defensible: ‘‘A belligerent State is not vested by LOIAC [law of international armed conflict] with the power to block an otherwise legitimate attack against combatants (or military objectives) by deliberately placing civilians in harm’s way.’’175 Major General A.P.V. Rogers takes a similar approach when commenting on how a tribunal considering the practice might respond. In his opinion, it would be entitled to take all the circumstances into account and attach such weight as it considers proper to such matters as the defender’s: … deliberate use of civilians or civilian objects as a cover for military operations … or … use of hostages or involuntary ‘human shields’. It is submitted that the proportionality approach by tribunals should help to redress the balance [between the rights and duties of attackers and defenders] which otherwise would be tilted in favour of the unscrupulous.176 172

International Committee of the Red Cross 1999, 58. Parks 1990, at 81–82. Certain pre-Additional Protocol I commentators are in accord. See, e.g., Spaight 1926, 163. 174 Dinstein 2004, at 131. 175 Id. 176 Rogers 2004, 129. 173

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Although no express precedent exists in international humanitarian law for discounting civilian value in a proportionality analysis, the literature addresses a somewhat analogous situation: workers in a munitions factory.177 Virtually all commentators agree that the workers are civilians who are not directly participating in hostilities. Many nevertheless take the view that they are not entitled to the full benefits of civilian status while at work. Rogers, for example, cites ‘‘use of civilians in war supporting activities’’ as one of the factors a tribunal would consider when judging the propriety of proportionality assessments,178 while Dinstein urges that industrial plant workers ‘‘enjoy no immunity while at work. If the industrial plants are important enough… civilian casualties—even in large numbers—would usually come under the rubric of an acceptable collateral damage.’’179 Perhaps most persuasively, a well-known academic commentary on the Additional Protocols states ‘‘it is doubtful that incidental injury to persons serving the armed forces within a military objective will weigh as heavily in the application of the rule of proportionality as that part of the civilian population which is not so closely linked to military operations.180 Discounting the value of involuntary shields does not violate Article 51.8’s proviso that those facing human shields remain bound by the norms safeguarding civilians. On the contrary, advocates agree that involuntary shields qualify as civilians (vice direct participants or unlawful combatants) and that the principle of proportionality applies. They merely suggest a mechanism for implementing the principle. By compensating for the military advantage a party using human shields gains through its violation of the law, the approach recalibrates the military necessityhumanitarian considerations balance.181 Yet, it is flawed in that it makes no commensurate correction in humanitarian considerations for factors such as the increased jeopardy in which the tactic places civilians, especially vulnerable protected persons. Indeed, populations and groups at risk are the very ones likely to be compelled into shielding. The examples of women and children have been cited. Or consider conflicts fought on behalf of a particular ethnic group, such as the Kosovar Albanians during Operation Allied Force. It would be illogical to discount their proportionality calculation valuation simply because the group’s persecutors have forced them to act as human shields. On the contrary, international humanitarian law expressly enhances protection of vulnerable groups, such as detainees, women, children and persons in occupied territory.182

177 For instance, the law of reprisal, assuming for the sake of analysis its continued vitality, allows the aggrieved party to violate the law temporarily; it does not represent a relaxation of international humanitarian law standards. See supra notes 164–165. 178 Rogers 2004. 179 Dinstein 2004, at 124. 180 Bothe et al. 1982. 181 See supra note 40 and accompanying text. 182 See, e.g., AP I, supra note 34, Articles 75–78; see generally GC IV, supra note 11.

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The Attacker’s Obligations

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The standard also poses practical difficulties. By eluding ready quantification, the art of determining proportionality already amounts to one of the most complex and difficult decisions warfighters make. For instance, what does the term ‘‘excessive’’ mean in practice? How should one compare two disparate values— ‘‘incidental loss of civilian life, injury to civilians, damage to civilian objects’’ and ‘‘concrete and direct military advantage’’?183 Proportionality assessments depend as much on instinct as calculation. Suggesting that certain civilians should count less than others would only render a sibylline determination more so. Perhaps an accommodation between the two camps—full treatment and discounted value—is possible. A modified tack would count involuntary shields fully as civilians in the proportionality analysis. However, in the face of uncertain proportionality—that is, when proportionality or the lack thereof is unclear—an attacker would be entitled to launch the strike. Such an approach preserves the rule of proportionality in its entirety, while rebalancing the disequilibrium in the military necessity-humanitarian considerations dichotomy. It constitutes a methodology for resolving uncertainty, not a devaluation of civilians, or the protections to which they are entitled.

11.3 Resolving Doubt Incontrovertibly, civilians enjoy the protection of international humanitarian law even when comingled with combatants, a point emphasized by Article 50.3 of Additional Protocol I: ‘‘The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.’’184 In certain circumstances, however, shielding affects that protection. The practical challenge lies in applying the relevant norms when doubt exists as to whether shielding is taking place, and, if so, whether it is nonconsensual. Such factual inquiries are particularly complicated given the intent requirement appertaining to the party allegedly employing shields and, in cases of voluntary shielding, to the shields themselves. Factual disagreement is common. No better example exists than the trading of allegations during Operation Change Direction. An Israeli Ministry of Foreign Affairs report on the conflict stated: [i]n the course of the conflict that it had initiated, Hizbullah’s operations entailed fundamental violations of international humanitarian law. Most specifically, it wilfully violated the principle of distinction, which obliges parties to a conflict to direct their attacks only against military objectives and prohibits the use of civilians as ‘human shields’ in the arena of combat. Throughout the conflict, Hizbullah demonstrated cynical disregard for

182

See, e.g., AP I, supra note 34, Articles 75–78; see generally GC IV, supra note 11. AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b). See note 130 and accompanying text. 184 AP I, supra note 34, Article 50.3. 183

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the lives of civilians, both on the Israeli side, where it targeted them, and on the Lebanese side, where it used them as ‘cover.’185

The Ministry posted videos and photos of Hezbollah shielding on its public website,186 and the Israeli government cooperated in a nongovernmental organization’s comprehensive study into the incidents.187 By contrast, Human Rights Watch noted: Israeli officials have made the serious allegation that Hezbollah routinely used ‘‘human shields’’ to immunize its forces from attack and thus bears responsibility for the high civilian toll in Lebanon. Apart from its position near UN personnel, Human Rights Watch found only a handful of instances of possible shielding behind civilians, but nothing to suggest there was widespread commission of this humanitarian law violation or any Hezbollah policy encouraging such practices. These relatively few cases do not begin to account for the Lebanese civilians who died under Israeli attacks.188

In the fog of battle, perceptions vary widely. As to defenders’ obligations, the question of whether civilians in the target area are being utilized as shields (and, if so, voluntarily) is essentially an evidentiary matter bearing on a possible breach of international humanitarian law. The answer is of de minimus concern to those engaged in ongoing military operations. But for attackers, the issues loom large on the battlefield. As a matter of law, they must consider the presence of shields (and their nature) when implementing proportionality and precautions in attack requirements. Of course, if all shields deserve full civilian treatment, as the first approach suggests, the issue is irrelevant; everyone counts and counts equally. However, the distinction is critical for those who (correctly) adopt the position that voluntary shields are direct participants. Additional Protocol I, Article 50.1, imposes a presumption in favor of civilian, and against combatant, status.189 Should doubt arise as to whether shielding is taking place, the norm would mandate a presumption in favor of non-

185

Israel Ministry of Foreign Affairs 2007, 4. Israel Ministry of Foreign Affairs 2006. 187 Erlich 2006. 188 Human Rights Watch 2007, at 40. The Human Rights Watch accounts of the conflict proved controversial. In particular, the organization issued a major forty nine-page assessment condemning Israeli action (without addressing unlawful activity by Hezbollah) a mere 3 weeks into the conflict and as it was underway. Nevertheless, at this early point, the organization asserted that The Israeli government claims that it targets only Hezbollah, and that fighters from the group are using civilians as human shields, thereby placing them at risk. Human Rights Watch found no cases in which Hezbollah deliberately used civilians as shields to protect them from retaliatory IDF attack. Hezbollah occasionally did store weapons in or near civilian homes and fighters placed rocket launchers within populated areas or near U.N. observers, which are serious violations of the laws of war because they violate the duty to take all feasible precautions to avoid civilian casualties. Human Rights Watch 2006, 3. 189 AP I, supra note 34, Article 50.1. See also CIHL, supra note 34, commentary to rule 6, at 23– 24. Additional Protocol I similarly imposes a presumption that objects ‘‘normally dedicated to civilian purposes’’ are civilian whenever doubt exists. AP I, supra note 34, Article 52.3. 186

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Resolving Doubt

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shielding.190 Since neither combatants nor civilians who directly participate in hostilities enjoy immunity from attack, it is also reasonable to analogously impose a presumption in case of doubt against characterizing a civilian as a directly participating voluntary shield. In all cases of doubt, the appropriate international humanitarian law standard on the battlefield is whether a reasonable warfighter in the same or similar circumstances would hesitate to act based on the degree of doubt he harbored. Beyond the operation of presumptions, Article 57.2(a)(i) of Additional Protocol I requires an attacker to do ‘‘everything feasible’’ to verify that a target qualifies as a military objective.191 Since this norm seeks, in part, to assure civilians the full legal protection to which they are entitled, attackers derivatively shoulder a duty to discern whether the individuals involved are shielding and, if so, whether they are acting voluntarily. The obligation to verify voluntarinessis critical because, as the Israeli Supreme Court grasped in Adalah, appearances can be deceiving. Willingness to shield may be patently obvious, as when civilians simply answer a public call. However, when a party to the conflict exercises particular control over the civilians in question, as during occupation or in repressive States, apparent consent merits close examination. The one exception to the voluntariness assessment requirement involves children, an especially vulnerable group. For instance, Palestinian militants often employ child shields because they have learned the IDF has ordered its solders not to use live ammunition against children.192 Children are legally incapable of forming the intent necessary to ‘‘directly participate’’ in hostilities, particularly given humanitarian law’s increasing recognition of their unique predicament during armed conflicts.193 Even if that were not so, as a practical matter it would typically be problematic to determine if a child present at a prospective target is there volitionally.

190 Discerning readers might protest that the modified discounted value approach runs counter to the presumption of civilian status in that it devalues civilians. Technically, it does not. A presumption of civilian status in cases of doubt as to whether an individual is a civilian or combatant still attaches. The issue is how to resolve doubt as to the proportionality of a strike, not the status of those forced to shield. In fairness, there is a diminishment in de facto protection for civilians. But what must be remembered is that international humanitarian law offers no mechanism for resolving murky proportionality calculations. In the absence of an express presumption, applicative interpretation must factor in the military necessity- humanitarian considerations dynamic. The modified approach does precisely that. 191 See AP I, supra note 34, Article 57.2a(1); see also CIHL, supra note 34, rule 16, at 55–56. 192 Weiner 2000, 679 n.407. 193 For instance with the entry into force on Feb. 12, 2002 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, G.A. Res. 54/263, Annex I, U.N. Doc. A/54/49 (May 25, 2000).

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11.4 Concluding Thoughts Human shielding turns the St. Petersburg Declaration’s military necessityhumanitarian considerations balance on its head through use of the latter to achieve the former. In light of the discordance characterizing the normative regime governing the practice, this chapter has proposed an approach that resolves the most contentious issues by distinguishing between voluntary and involuntary shields. With regard to the defender’s obligations, the use of involuntary shields incontrovertibly violates conventional and customary international law. However, since voluntary shields, as direct participants in hostilities, lose the protections provided by international humanitarian law during an attack, their presence can no longer potentially ‘‘immunize’’ a target, and the norm becomes inoperative. The involuntary–voluntary distinction also drives the attacker’s obligations in shielding situations. Voluntary shields qualify as direct participants in hostilities and thus do not factor into proportionality and precautions in attack calculations. Involuntary shields, by contrast, are civilians who enjoy immunity from attack. Any harm likely to be caused them during an attack against a military objective (including combatants or civilians directly participating in the hostilities) must be evaluated to ensure it is not excessive in light of the military advantage the attacker anticipates achieving. Moreover, the fact that the shields may be harmed requires the attacker to explore weapons, tactics and targets options that might result in less harm while yielding a similar military advantage. A presumption in favor of involuntariness operates to resolve any doubt surrounding the nature of shielding. Operationalizing the shielding rules on the battlefield is at least as complex as deconstructing their normative content. Although a defender’s use of voluntary shields may not technically contravene the human shields prohibition, experiences since at least the First Gulf War have aptly demonstrated that such practices are condemnable and that perpetrators should expect to be ostracized internationally for engaging in them. Consequently, the practical mid- and long-term costs of resorting to the tactic will typically outweigh any possible short-term benefits. The attacker faces a similar quandary. Although striking a voluntarily shielded target may be lawful, conducting attacks that harm human shields will more often than not prove counterproductive. A prudent attacker will always consider, for instance, the risk of domestic and international blowback resulting from the scenes of dead and injured civilians certain to appear around the world in near real-time. Prudence also dictates consideration of the impact such incidents are likely to have on the morale of the enemy’s population and armed forces. This is especially so given the difficulty of communicating the anticipated military advantage that legally justified the action to a predominately non-military lay audience. In other words, the risks of falling victim to lawfare can loom as large as legal or military factors. Rules of engagement and other operational directives should reflect this reality. Accordingly, United States Air Force doctrine cautions, ‘‘[a]s directed or time permitting, targets surrounded by human shields will probably need to be

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Concluding Thoughts

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reviewed by higher authority for policy and legal considerations based on the specific facts.’’194 Such legal, policy and operational quandaries have now descended from the ivory tower. Today, shielding is a central issue in two major international projects bringing together experts and practitioners to explore the norms governing 21st century warfare.195 Yet, until consensus can be achieved on interpretations of shielding norms, civilians will remain at risk and military forces will engage in combat without the definitive guidance they deserve.

Abbreviations ICC

International Criminal Court

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the Former Yugoslavia

IDF

Israel Defense Forces

NATO

North Atlantic Treaty Organization

OSCE

Organization for Security and Cooperation in Europe

References Acheson D (1950) U.S. Sec’y of State (Sept. 6) Reprinted in Whiteman M (1968) Digest Int Law 10:424 Amnesty International (2000) ‘‘Collateral damage’’ or unlawful killings?: violations of the laws of war by nato during operation allied force Block R (2007) Shields In: Gutman R et al (ed) Crimes of war 378 2nd edn Bothe M (2002) War crimes In: Cassese A et al (ed) I The Rome statute of the international criminal court: a commentary 379 Bothe M, Partsch KJ, Solf WA (1982) New rules for victims of armed conflicts British War Office (1914) Manual of military law

194 AFDD 2.1, supra note 154, at 90. The doctrine points to civilians and the sick and wounded and offers the specific examples of surface-to-air missile sites intentionally placed next to a hospital or the ruins of an ancient temple. The latter example derives from the placement of aircraft next to the ancient Temple of Ur during the Gulf War of 1991. See Gulf War Report, supra note 9, at 701. 195 Harvard Program on Humanitarian Policy and Conflict Research, IHL in Air and Missile Warfare project. http://www.hpcrresearch.org/projects/amw.php (last visited Mar. 15, 2009); ICRC Summary Report 2006.

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Dunlap Jr. CJ (2001) Law and military interventions: preserving humanitarian values in 21st century conflicts (Harvard University, Carr Center Working Paper) Department of Defense (2000) Report to congress: Kosovo/operation allied force after-action report Department of Defense Dictionary of Military and Associated Terms (2007) Joint publication 102, as amended through October 17, http://www.dtic.mil/doctrine/jel/doddict/ DeSaussure AL (1994) The role of the law of armed conflict during the persian gulf war: an overview. AFL Rev 37:41 Dinstein Y (2002a) Legitimate military objectives under the current jus in Bello. In: Wall AE (ed) Legal and ethical lessons of Nato’s Kosovo campaign 139 Dinstein Y (2002b) Unlawful combatancy. 32 Israel, YB Hum RTS 247 Dinstein Y (2004) The conduct of hostilities under the law of international armed conflict Dinstein Y (2005) War aggression and self-defence. 4th edn Dinstein Y (2006) The interplay between customary international law and treaties, 322 Recueil des cours 246 Dörmann K (2002) Elements of war crimes under the statute of the international criminal court: sources and commentary Dörmann K (2003) The legal situation of ‘‘unlawful/unprivileged combatants’’, Int Rev Red Cross 85:45 Dunlap Jr Major General CJ (2003) The role of the lawyer in war: It Ain’t no TV show: JAGs and modern military operations, CHI J Int Law 4:479 Dworkin A (2003) Guerrilla war, ‘‘deadly deception,’’ and urban combat, crimes of war project, March 26. http://www.crimesofwar.org/print/onnews/iraq-guerrilla-print.html Elliot HW (1995) Hostages or prisoners of war: war crimes at dinner. MIL Law Rev 149:241 Erlich R (2006) Hezbollah’s use of Lebanese civilians as human shields (center for special studies) Faiez R (2007) Claim. Taliban used children as human shields, Associated press, 20 Sept Gaza Women Killed in Mosque Siege (2006) BBC news. http://news.bbc.co.uk/2/hi/middleeast/ 6112386.stm, Accessed 3 Nov 2006 Gross E (2002) Use of civilians as human shields: what legal and moral restrictions pertain to a war waged by a democratic state against terrorism? Emory Int Law Rev 16:445 Henckaerts J-M (2005) Study on customary international humanitarian law: a contribution to the understanding and respect for the rule of law in armed conflict. Int Rev Red Cross 87:175 Hollis DB (1995) Accountability in Chechnya: addressing internal matters with legal and political international norms. BCL Rev 36:793 Human Rights Watch (2003a) Briefing paper: international humanitarian law issues in a potential war in Iraq (20 Feb 2003) Human Rights Watch (2003b) Human shields in Iraq put obligation on US. 23 Feb. http://www.hrw.org/english/docs/2003/02/20/iraq5320.htm Human Rights Watch (2006) Fatal strikes: Israel’s indiscriminate attacks against civilians in Lebanon Human Rights Watch (2007) Why they died: civilian casualties in lebanon during the 2006 war ICRC Summary Report (2004) Second expert meeting: direct participation in hostilities under international humanitarian law. http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/ participation-hostilities-ihl-311205/$File/Direct-participation in_hostilities_2004_eng.pdf ICRC Summary Report (2006) Fourth expert meeting: direct participation in hostilities under international humanitarian law International Committee of the Red Cross (1960) Geneva Convention relative to the treatment of prisoners of war (III): commentary 35–36 International Committee of the Red Cross (1987) Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 august 1949. In: Sandoz Y et al (eds) International Committee of the Red Cross (1999) Fight it right: model manual on the law of armed conflict for armed forces

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International Committee of the Red Cross (2004) 1956 draft rules for the limitation of the dangers incurred by the civilian population in time of war, In: Schindler D, Toman J (eds) 4th Rev edn The Laws of Armed Conflict 339 Iraqis Volunteering as Human Shields (1997) CNN Interactive. 14 Nov. http://www. cnn.com/WORLD/971 1/14/iraq.al.sahhaf presser Israel Ministry of Foreign Affairs (2006) Hizbullah’s exploitation of Lebanese population centers and civilians: photographic evidence. http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/ 2006/Operation%20Change%20of%20Direction%20Video%20Clips Israel Ministry of Foreign Affairs (2007) Israel’s war with Hizbollah: preserving humanitarian principles while combating terrorism (Diplomatic Notes No. 1 2007). http://mfa.gov.iUNR/ rdonlyres/74D04C9D-FA73-4A54-8CBADBCB1152C82E/O/DiplomaticNotes01.pdf Joint Chiefs of Staff (2007) Joint targeting (Joint Publication 3-60) (13 April 2007) Joint Chiefs of Staff (2008) Joint operations (Joint publication 3-0) (13 Feb 2008) Kalshoven F (2005) Belligerent reprisals. 2nd edn Marin MA (1957) The evolution and present status of the laws of war. 92 Receuil des cours 629 Matheson MJ (1987) Remarks: The united states position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Convention, 2 AM U J Int L Pol 419 McDougal MS, Reisman WM (1980) The prescribing function in the world constitutive process: how international law is made. Yale J World Ord Stud 6:249 OSCE (1999) Kosovo/Kosova: as seen, as told: an analysis of the human rights findings of the Kosovo verification mission: October 1998–June 1999 Otto R (2004) Neighbours as human shields? the Israel defense forces’ ‘‘early warning procedure’’ and international humanitarian law, Int Rev Red Cross 856:771 Parks WH (1990) Air war and the law of war. A F Law Rev 32:1 Peterson S (2003) Human shields. In: Tug-of-war, Christian Science Monitor, 17 March Quéguiner J-F (2006) Precautions under the law governing the conduct of hostilities. Int Law Rev Red Cross 88:793 Reisman WM (1997) The lessons of Qana. 22 Yale J Int Law 381 Robertson Jr HB (1998) The principle of military objective in the law of armed conflict. In: Schmitt MN (ed) The law of military operations 197 Rogers APV (2004) Law on the battlefield. 2nd edn Saddam Thanks Human Shields, Announces Day of Victory (1997) BBC NEWS, 20 Nov. http://news.bbc.co.uk/1/hi/world/monitoring/33345.stm (Text of report by the Iraqi news agency) Sassoli M (2003) Legitimate targets of attacks under international humanitarian law, Harvard International Humanitarian Law Research Initiative. http://www.ihlresearch.org/ihl/ pdfs/Sessionl.pdf Schmitt MN (1997) Green war: an assessment of the environmental law of international armed conflict. Yale J Int Law 22:1 Schmitt MN (2003) Targeting and humanitarian law: current issues. 33 Israel YB Hum RTS 59 Jaques RB (ed) Reprinted in issues in international law and military operations 151 2006) Schmitt MN (2004a) ‘‘Direct participation in hostilities’’ and 21st century armed conflict. In: Fischer H et al (eds) Krisensicherung Und Humanitarer Schutz—crisis management and humanitarian protection 505, 521 Schmitt MN (2004b) Humanitarian law and direct participation in hostilities by private contractors or civilian employees. CHI J Int Law 5:511 Schmitt MN (2005) Precision attack and international humanitarian law. Int Rev Red Cross 87 (859):445 Schmitt MN (2006) Fault lines in the law of attack. In: Breau S, Jachec-Neale A (eds) Testing the boundaries of international humanitarian law 277 Schmitt MN (2007a) 21st century conflict: can the law survive? MELB J Int Law 8:443 Schmitt MN (2007b) Asymmetrical warfare and international humanitarian law, in international law facing new challenges 11 von Heinegg WH, Epping V (eds)

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Schmitt MN (2007c) Targeting, in perspectives on the icrc study on customary international humanitarian law 131 Breau S, Wilmshurst E (eds) Schmitt MN, Garraway CHB, Dinstein Y (2006) The manual on the law of non-international armed conflict with commentary. Int Inst Hum Law Schoenekase DP (2004) Targeting decisions regarding human shields. Military Rev, Sept–Oct 2004 Serb Media: NATO Lies Over Rapes (1999) BBC On-line http://news.bbc.co.uk/1/ hi/world/monitoring/316147.stm (last visited Feb. 1. 2009) (on file with the Columbia Journal of Transnational Law) 10 April Spaight JM (1911) War rights on land Spaight JM (1926) Air power and war rights (1st edn) Synovitz R (2007) US Says Al-Qaeda used afghan children as human shields. Radio free Europe/ Radio Liberty. http://www.rferl/featuresarticle/2007/06/5d7daf6d-27d0-4c44-b9ic-106d8a79e bef.html, Accessed 18 June 2007 Teninbaum GH (2004) American volunteer shields in Iraq: free speech or treason? Suffolk Trans Law Rev 28:139 US Defense Intelligence Agency (2003) Saddam’s use of human shields and deceptive sanctuaries: special briefing for the pentagon press corps. http://www.defenselink.mil/news/ Feb2003/g030226-D-9085M.html Accessed 26 Feb 2003 US Department of Defense (2003) Briefing on human shields. (http://merln.ndu. edu/MERLN/PFIraq/archive/dod/t02262003.pdf, Accessed 26 Feb 2003 Voon T (2001) Pointing the finger: civilian casualties of NATO bombing in the Kosovo conflict. Am Int Rev 16:1083 Watkin K (2005) Warriors without rights? combatants, unprivileged belligerents, and the struggle over legitimacy 1 (Occasional paper, Harvard program on humanitarian policy and conflict research) (Winter 2005). http://www.hpcr.org/pdfs/OccasionalPaper2.pdf (on file with the Columbia Journal of Transnational Law) Weiner JR (2000) co-existence without conflict: the implementation of legal structures for israelipalestinian cooperation pursuant to the interim peace agreements. Brook J Int Law 26:591 Whiteman M (1968) 10 Digest Int Law Winthrop W (1896) 2 Military law and precedents 797 n. 61 2nd edn 1920

Chapter 12

Investigating Violations of International Law in Armed Conflict

Abstract This chapter examines the legal norms governing investigations of possible international law violations during an armed conflict. It begins by setting forth those rules derived from the 1949 Geneva Conventions, 1977 Additional Protocols and customary law. Since human rights norms also apply in armed conflicts, the chapter surveys human rights investigatory standards, and how they interact with corresponding international humanitarian law rules. Since international humanitarian and human rights law on the subject lacks granularity, State practice is surveyed in order to tease out prevailing practices that may either reflect on how treaty law is applied or reveal the broad outlines of customary law. The chapter offers conclusions as to the applicable legal standards for such investigations.

Contents 12.1 IHL Requirements ........................................................................................................ 12.1.1 The 1949 Geneva Conventions ...................................................................... 12.1.2 The 1977 Additional Protocol I ..................................................................... 12.1.3 Customary International Humanitarian Law.................................................. 12.2 The Interplay Between International Human Rights and Humanitarian Law Norms 12.2.1 Human Rights Norms Regarding Investigations ........................................... 12.2.2 Applicability of Human Rights Norms in Armed Conflict........................... 12.3 State Practice ................................................................................................................ 12.3.1 Canada............................................................................................................. 12.3.2 Australia .......................................................................................................... 12.3.3 United Kingdom.............................................................................................. 12.3.4 United States ................................................................................................... 12.3.5 Conclusions as to State Practice .................................................................... 12.4 Concluding Thoughts ................................................................................................... References................................................................................................................................

591 592 595 598 602 602 604 609 610 614 618 620 626 630 633

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M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1_12,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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Investigating Violations of International Law in Armed Conflict

On December 27, 2008, the Israel Defence Force (IDF) launched Operation Cast Lead into Gaza in an attempt to thwart continuing attacks by Hamas and other Palestinian organized armed groups. Military operations continued for 22 days until Israel declared a unilateral cease-fire and withdrew its forces. Allegations of widespread human rights and international humanitarian law (IHL) violations ensued.1 Among the issues raised in the aftermath of the conflict was the adequacy of investigation by the parties into possible violations of international law. In Turning a Blind Eye: Impunity for Laws-of-War Violations during the Gaza War, Human Rights Watch charged that ‘‘[m]ore than one year after the conflict, neither side has taken adequate measures to investigate serious violations or to punish perpetrators of war crimes.’’2 B’Tselem, an Israeli non-governmental organization, similarly argued that because the military, including the IDF’s legal officers, conducted most Israeli investigations, the process was tainted, for ‘‘no system can investigate itself.’’3 Perhaps most significantly, the September 2009 ‘‘Goldstone Report,’’ commissioned by the United Nations Human Rights Council President, found that ‘‘the failure of Israel to open prompt, independent and impartial criminal investigations even after six months have elapsed constitute a violation of its obligations to genuinely investigate allegations of war crimes and other crimes, and other serious

1

See, e.g. Amnesty international 2009; Human Rights Watch 2009b; Human Rights Watch 2009a; Human Rights Watch 2009d; Human Rights Watch 2009c; Human Rights Watch 2010a. 2 Human Rights Watch 2010b. Hamas had conducted no meaningful investigations by the time of the report; Israel had conducted 150 investigations and issued two reports, but Human Rights Watch found them to ‘‘have fallen short of international standards for investigations.’’ Id. at 1. For the Israeli reports, see State of Israel 2009; State of Israel 2010a. In July 2010, Israel published its third report on Cast Lead, specifically addressing the status of the ongoing investigations. State of Israel 2010b. In June 2010, the Israeli Government established an independent public commission consisting of a former Israeli Supreme Court Justice, a distinguished Israeli international law professor, a retired Israeli general, a Northern Irish Nobel Peace Prize Laureate, and the former Canadian Judge Advocate General (the commission was later expanded to include an Israeli scholar and a former diplomat). Although formed in response to the Mavi Marmara incident during the Israeli blockade of Gaza, the ‘‘Turkel Commission’’ was further empowered to investigate ‘‘the mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict … conform with the obligations of the State of Israel under the rules of international law.’’ Government Establishes Independent Public Commission 2010. For discussion and criticism of such commissions, see Alston 2008. 3 Israel’s Report to the UN Misstates the Truth 2010. The organization also argued that ‘‘[t]he investigation must examine not only the conduct of the soldiers in the field but also the orders given them and the policy that was set by the senior military echelon and the political echelon.’’ Id.

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violations of international law.’’4 The United Nations General Assembly subsequently endorsed the Goldstone Report, although the action, like the report, proved highly contentious.5 In light of the controversy, the Human Rights Council established a ‘‘committee of independent experts in international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly Resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards.’’6 Essentially an

4 Human Rights in Palestine and other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, para 1620, U.N. Doc. A/HRC/12/48 (September 15, 2009) [hereinafter Goldstone Report]. It specifically determined that ‘‘the system put in place by Israel … to deal with allegations of serious wrongdoing by armed forces personnel does not comply with [all of the universal principles of independence, effectiveness, promptness and impartiality]’’… and that it ‘‘is not effective in addressing the violations and uncovering the truth.’’ Id. paras 1611–13. The report was highly controversial. For instance, the US House of Representatives passed a resolution condemning the report. H. Res. 867, 111th Cong. (2009). See also Blank 2010. 5 G.A. Res. 64/10, U.N. Doc. A/RES/64/10 (December 1, 2009). Of the Permanent five members of the Security Council, the United States voted against approval of the report, whereas China voted in favor and Russia, France and the United Kingdom abstained. The Deputy US Representative to the United Nations criticized the resolution and called the Goldstone Report biased:

We continue to believe that the Report of the UN Fact-Finding Mission on the Gaza Conflict, widely known as the Goldstone Report, is deeply flawed. We have previously noted shortcomings that include its unbalanced focus on Israel, the negative inferences it draws about Israel’s intentions and actions, its failure to deal adequately with the asymmetrical nature of the Gaza conflict, and its failure to assign appropriate responsibility to Hamas for deliberately targeting civilians and basing itself and its operations in heavily civilian-populated urban areas. The Goldstone Report is also problematic in its many overreaching recommendations and its sweeping legal and political conclusions. U.N. GAOR, 64th Session, 39th plen. meeting at 12, U.N. Doc. A/64/PV.39 (November 5, 2009). The General Assembly called upon both Israel and the Palestinians to conduct investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission. G.A. Res. 64/10, supra, at 2. In February 2010, the Assembly reiterated its call for investigations. G.A. Res. 64/254, U.N. Doc. A/RES/64/254 (March 25, 2010). 6 Follow-up to the report of the United Nations Independent International Fact- Finding Mission on the Gaza Conflict, H.R.C. Res. 13/9, U.N. Doc. A/HRC/RES/13/9 (April 14, 2010). Of the P-5, the United States voted against the resolution, Russia and China voted in favor and France and the United Kingdom abstained.

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‘‘investigation into investigations,’’ the committee issued its report in September 2010.7 In it, certain aspects of the investigations conducted by both sides were criticized.8 Although the Committee’s report summarizes the human rights and IHL law bearing on the conduct of investigations, it neither does so in depth nor with reference to State practice.9 This chapter examines the legal standards in greater depth. It intentionally avoids the politically charged matter of Israeli and Palestinian investigative practices. Similarly, it draws no conclusions as to the Committee’s assessment thereof. Rather, the goal is more general—to identify criteria against which investigations must be judged under international law and, in the process, clarify the relationship between IHL legal criteria and those residing in human rights law. This broader examination is essential, for claims of non-compliance are limited to neither Operation Cast Lead, nor to the conflict between Israel and the Palestinians.10 Moreover, since such investigations are increasingly frequent, an urgent need exists for practical legal guidance on their conduct. The inquiry will proceed in four phases. First, the relevant IHL will be set forth. Since the lex scripta is limited, an effort will be made to identify criteria for investigations that are, or are not, implicit in the law. Second, human rights norms regarding investigations will be briefly surveyed, as will the relationship between IHL and human rights law. The purpose is to determine which body of law applies to investigations, and how. Third, the practice of four States (Canada, Australia, United Kingdom and United States) will be examined to determine whether there are commonalities that can elucidate the extant norms. Finally, the chapter will conclude by setting forth those characteristics of investigations that represent not ‘‘best practice’’ or lex ferenda, but instead the applicable minimum criteria for compliance with the lex lata.

7

Report of the Committee of Independent Experts in International Humanitarian and Human Rights Laws to Monitor and Assess Any Domestic, Legal or Other Proceedings Undertaken by both the Government of Israel and the Palestinian Side, U.N. Doc. A/HRC/15/50 (September 21, 2010) (Advanced Edited Version) [hereinafter Investigations Report]. 8 The Committee expressed concern about a purported conflict of interest involving the provision of legal advice on both operational and investigative matters by the Military Advocate General (although the criticism was specific to the case of Gaza), noted that the Israelis should have paid greater heed to victims and witnesses (although the Committee did not find the human rights standards in this regard as strictly applicable to armed conflict), stated that Israel failed to meet its human rights and humanitarian law obligations to investigate torture and high level violations, and stated that it could not conclude that Hamas had met its obligation to conduct ‘‘credible and genuine’’ investigations. Id. at 23–24. 9 Id. at 3–11. 10 See, e.g. Human Rights Watch 2005 (criticizing earlier Israeli investigations); Issue Brief: Getting to the Truth through an Independent Commission of Inquiry, Amnesty International, http://www.amnestyusa.org/war-onterror/page.do?id=1541004 (calling for an Independent Commission of Inquiry into US practices during the so-called ‘‘war on terror’’).

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12.1 IHL Requirements Prior to the First World War, it was generally left to States to determine whether to punish their own nationals or captured enemy soldiers for violations of the laws and customs of war. The primary international remedy for violations was pecuniary in nature. As an example, the 1907 Hague Regulations provided that a ‘‘belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’’11 Following the conflict, the Versailles Treaty contemplated the prosecution by ‘‘military tribunals [of] persons accused of having committed acts in violation of the laws and customs of war,’’ and required Germany to hand over, on request, all such individuals.12 However, the Dutch government declined to surrender the Kaiser for trial, claiming that to do so would be a breach of neutrality, and the German government refused to transfer its citizens, instead agreeing with the Allies to conduct prosecutions before the German Supreme Court in Leipzig.13 Very few trials were held and the sentences were disproportionately light. The experience of the Second World War was dramatically different. During the conflict, the Allies made clear their intent to prosecute perpetrators of war crimes, including those who ordered them.14 Upon termination of hostilities, war crimes trials were conducted by the victorious Allies at the International Military Tribunals at Nuremberg and Tokyo,15 by occupying powers,16 and by individual States.17

11

Hague Convention (IV) Respecting the Laws and Customs of War on Land, Article 3, October 18, 1907, 36 Stat. 2277, 207 Consol. T.S. 277. 12 Treaty of Peace with Germany, Article 228–29, June 28, 1919, 2 Bevans 43, 11 Martens Nouveau Recueil (ser. 3) 323, 225 Consol. T.S. 188. 13 On the trials, see Mullins 1921. 14 See, e.g. Declaration of Four Nations on General Security, October 30, 1943, 9 Dep’t St. No. 307(1943) (Moscow Declaration on Atrocities). 15 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal Article 1–3, August 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]; Charter of the International Military Tribunal for the Far East at Tokyo, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, April 26, 1946, 4 U.S.T. 27, T.I.A.S. No. 1589. 16 Control Council Law No. 10, (1946) (Ger.). The law was promulgated by the Allied Control Council, which was responsible for the military occupation of Germany by the United States, United Kingdom, Soviet Union, and France. The law authorized each of the occupying powers to conduct its own war crimes trials independent of the International Military Tribunal. 17 Many war crimes trials were conducted in national courts that enjoyed jurisdiction over the relevant offenses and offender (e.g. an offense committed by a national of the State or against its nationals). Control Council Law No. 10 set forth procedures for such cases when the accused was located in Germany:

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12.1.1 The 1949 Geneva Conventions As importantly, the international community required States to actively pursue prosecution in future conflicts by confirming such a duty in each of the four 1949 Geneva Conventions.18 The relevant articles in the instruments are nearly identical. They provide: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breached defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided [for in the Third Geneva Convention, Article 105 ff].19

By the provisions, States Party to the Conventions shoulder three fundamental obligations: (1) to enact the domestic legislation necessary to prosecute potential

(Footnote 17 continued) When any person in a Zone in Germany is alleged to have committed a crime, as defined in Article II, in a country other than Germany or in another Zone, the government of that nation or the Commander of the latter Zone, as the case may be, may request the Commander of the Zone which the person is located for his arrest and delivery for trial to the country or Zone in which the crime was committed. Such request for delivery shall be granted by the Commander receiving it unless he believes such person is wanted for trial or as a witness by an International Military Tribunal, or in Germany, or in a nation other than the one making the request, or the Commander is not satisfied that delivery should be made, in any of which cases he shall have the right to forward the said request to the Legal Directorate of the Allied Control Authority. A similar procedure shall apply to witnesses, material exhibits and other forms of evidence. Control Council Law No. 10, id. Article IV.1. 18

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Article 49, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Article 50, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; Geneva Convention Relative to the Treatment of Prisoners of War, Article 129, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 146, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. 19 GC IV, supra note 18, Article 146.

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offenders; (2) to search for those accused of violating the Conventions; and (3) to either prosecute such individuals or turn them over to another State for trial (aut dedere aut punire). The grave breaches referenced in the first paragraph are set forth in other articles of the conventions.20 Violations not constituting grave breaches (such as misuse of the Red Cross emblem) are nevertheless to be addressed in national penal legislation, although there is no treaty obligation to prosecute or extradite. Not every violation of IHL constitutes a war crime. Instead, the term ‘‘war crimes’’ refers to violations that result in individual penal responsibility of individuals.21 While States have the obligation to ensure compliance with all aspects of IHL, only war crimes give rise to the obligation to prosecute. For instance, States have the obligation to disseminate the Conventions,22 but the failure of officials to do so does not reach the level of a war crime. With regard to investigations, the relevant text lies in the second paragraph’s complementary requirements to ‘‘search for’’ persons alleged to have committed grave breaches and to try them domestically or turn them over to other Parties, an obligation which can be met by transfer to a competent international tribunal.23 The International Committee of the Red Cross’ official Commentary on the articles confirms that the obligation extends to nationals of the State and members of the enemy forces, and that the Parties must actively search for, arrest and prosecute those responsible for violations as quickly as possible.24 Any request for extradition has to be supported by evidence establishing a ‘‘prima facie case,’’ which

20

GC I, supra note 18, Article 50; GC II, supra note 18, Article 51; GC III, supra note 18, Article 130; GC IV, supra note 18, Article 147. 21 There is no definitive delineation between the two categories. The Charter of the IMT cited the following as examples of war crimes: ‘‘murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or destruction not justified by military necessity.’’ IMT Charter, supra note 15, Article 6(b). Without doubt, all grave breaches of the 1949 Geneva Conventions constitute war crimes. Additionally, it is generally accepted that those offenses set forth in Article 8 of the Statute of the International Criminal Court amount to war crimes under customary law (although the precise parameters of the offenses may differ from those in the Statute). Rome Statute of the International Criminal Court Article 8, July 1, 2002, 2187 U.N.T.S. 90 [hereinafter ICC Statute]. On the distinction between war crimes and acts that merely violate IHL, see Lauterpacht 1944; Dinstein 2010, pp. 263–66. 22 See, e.g. GC III, supra note 18, Article 127; GC IV, supra note 18, Article 144; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, Article 83, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]. 23 International Committee of the Red Cross, Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Armed Forces in the Field 366 (J. Pictet 1952) [hereinafter GC I Commentary]. 24 Id. at 365–66; Int’l Comm. of the Red Cross, Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War 623 (J. Pictet 1960) [hereinafter GC III Commentary]; Int’L Comm. of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 592–93 (J. Pictet 1958) [hereinafter GC IV Commentary].

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the Commentary interprets as ‘‘a case in which the facts would justify proceedings taken in the country to which application is made for extradition.’’25 Finally, the Commentary refers to the International Law Commission’s 1954 Draft Code of Offences against the Peace and Security of Mankind’s inclusion of ‘‘acts in violation of the laws or customs of war.’’26 The reference implies that the duties set forth in the provisions are not limited to those articulated in the Conventions themselves, but extend to any war crimes. Beyond these basic explanations, the Commentary offers little guidance in interpreting the articles. In particular, it sets no standards for the nature of the investigation that has to be conducted into possible war crimes. Nevertheless, certain conclusions can be deduced from the text and its accompanying commentary: 1. The articles impose no obligation to conduct investigations to uncover IHL violations. Rather, (1) an allegation of (2) a war crime is the condition precedent to activation of the duty. There is no requirement that the identity of the possible offender be known, only that a violation be suspected. 2. There is no limitation as to the source of an allegation. Presumably, the requisite allegation could be levelled by State authorities, private individuals, nongovernmental organizations, other States, or intergovernmental organizations. 3. There is a threshold of certainty below which the obligations do not apply, a fact suggested by the lack of a requirement to prosecute or extradite absent a prima facie case. Although the text refers solely to prosecution, an analogous condition of reasonableness logically applies to the duty to search for offenders (investigate). Thus, not every allegation requires an investigation; only those sufficiently credible to reasonably merit one do. 4. The requirements apply to all violations of IHL that constitute war crimes. 5. The requirement to investigate possible war crimes and prosecute those responsible extends to the actions of individuals who order the commission of an offense. By the principle of ‘‘command responsibility,’’ such individuals are treated as perpetrators of the resulting crime, not merely accomplices.27 Thus, 25

GC I Commentary, supra note 23, at 366. Should extradition of an accused be precluded by national legislation, for instance because of nationality, the State having custody of the individual must try that person before its own courts. Id. See also Int’L Comm. of the Red Cross 1960, p. 265; GC III Commentary, supra note 24, at 623–64; GC IV Commentary, supra note 24, at 593. 26 GC IV Commentary, supra note 24, at 588 [citing Draft Code of Offences against the Peace and Security of Mankind, Article 2 (13), in Rep. of the Int’l Law Comm’n, U.N. Doc. A/2693 GAOR, Supp. No. 9, at 9 (1954)]. 27 See, e.g. ICC Statute, supra note 21, Article 25.3(b); Statute of the International Tribunal for Rwanda, S.C. Res. 955 annex, U.N. Doc. S/RES/955, Article 6(1) (November 8, 1994) [hereinafter ICTR Statute]; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704 annex, Article 7(1) (May 3, 1993) [hereinafter ICTY Statute]; ICRC, I Customary International Humanitarian Law Rule 152 (Jean-Marie Henkaerts and Louise Doswald-Beck 2005) [hereinafter CIHL].

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setting a policy of committing war crimes, such as directing forces to target the enemy civilian population, would necessitate investigation and, if appropriate, prosecution.

12.1.2 The 1977 Additional Protocol I Between 1974 and 1977 a Diplomatic Conference was convened to further develop the law that had been set forth in 1949.28 The resulting Protocols Additional (Protocol I for international armed conflict and Protocol II for non-international) do not supplant the Conventions, but rather supplement them for State Parties to the two instruments.29 While Protocol II makes no reference to a duty to investigate alleged war crimes, Protocol I builds on the duty to investigate and prosecute set forth in the Conventions, which it expressly references.30 In addition to listing those violations that constitute grave breaches and requiring States to cooperate in criminal investigations, in Article 87 the Protocol ‘‘operationalizes’’ the requirements of investigation and prosecution. 1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. (…) 3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.31

Importantly, the ICRC Commentary on the Protocols expressly contemplates investigations conducted by the commander, who would in such cases ‘‘act like an investigating magistrate.’’32 The article is designed to leverage the internal

28

The Conference was convened by the Swiss government and held four sessions: February 20– March 29 1974; February 3–April 18 1975; April 21–June 11 1976; and March 17–June 10 1977. 29 AP I, supra note 22, Article 1.2; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Article 1.1, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II]. Notably, the United States and Israel have elected not to become a Party to either of the Protocols, although some of the norms expressed in provisions thereof reflect customary international law and as such bind both States, as well as all other non-Parties. 30 AP I, supra note 22, Articles 85, 87–89. 31 Id. Article 87. 32 Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Yves Sandoz et al. 1987), para 3562 [hereinafter AP Commentary].

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command and disciplinary structures of the armed forces to identify and prosecute offenders. As emphasized in the Commentary, ‘‘[w]hether they are concerned with the theatre of military operations, occupied territories or places of internment, the necessary measures for the proper application of the Conventions and the Protocol must be taken at the level of the troops, so that a fatal gap between the undertakings entered into by Parties to the conflict and the conduct of individuals is avoided.’’33 Thus, Article 87 imposes a duty on members of the armed forces to act proactively in the face of potential or possible IHL violations. Commanders represent the key to implementation. The mandate to prevent, identify, and act extends to all members of the military exercising a command function, no matter how senior or junior.34 They need not be formally designated as commanders according to the regulations of their armed forces; the obligations attach as soon as they assume a command function. For example, the concept of ‘‘commander’’ as used in Protocol I applies to ‘‘the common soldier who takes over as head of the platoon to which he belongs at the moment his commanding officer has fallen and is no longer capable of fulfilling his task.’’35 Commanders are not only charged with reacting to violations that occur in their presence or come to their immediate attention, but also with creating a ‘‘command climate’’ that fosters preventing and reporting violations.36 The fact that legal advisers may be attached to a unit does not relieve the commander of responsibility for enforcing IHL. Such advisers ‘‘are there to ‘advise the military commanders’ in the field and not to replace them.’’37 Of course, this caveat does not imply that commanders must perform all associated tasks themselves; such an obligation would be impractical in light of their combat duties. Thus, commanders may assign tasks to, for example, the military police and legal advisers and rely on them to properly execute such tasks.38 What they cannot delegate is the responsibility to ensure compliance with IHL by the forces they command. The State must take measures to impose these duties upon commanders and ensure they implement them.39 During the negotiations of Protocol I, a number of

33

Id. para 3550. Id. para 3553; Bothe et al. 1982, p. 528. 35 AP Commentary, supra note 32, para 3553. Nor do commanders necessarily exercise command only over those officially assigned to their unit. Should a commander be temporarily in control of forces during a particular operation or as a result of the flow of battle, he or she must ensure compliance with the provisions of Article 87 and other IHL norms vis-à-vis such forces. Id. para 3554. For the purposes of the article, a commander is also responsible for the actions of ‘‘other persons under their control,’’ as in the case of the civilian population in occupied territory or troops of other units operating in his or her sector of occupation. Id. para 3555. 36 Id. para 3550. 37 Id. para 3557. The obligation to have legal advisers available to advise on implementation of IHL is set forth in GC IV, supra note 18, Article 82. 38 AP Commentary, supra note 32, para 3563. 39 Id. para 3552. 34

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delegations expressed concern that Article 87 might be interpreted as relieving governmental authorities of their responsibilities or that commanders in the field might ‘‘encroach on the judgement of the judicial authorities.’’40 Despite such concerns, commanders often turn to the courts to address possible war crimes.41 As a matter of law, it is incontrovertible that the State continues to bear responsibility for implementation, that the duties to investigate and prosecute extend throughout the chain of command, and that judicial and other disciplinary bodies retain full responsibility for performing their functions. The responsibilities are complementary, with commanders expected to exercise whatever authority has been vested in them within the implementation, enforcement, and disciplinary structure of their armed forces and government.42 As with related provisions of the 1949 Geneva Conventions and the corresponding ICRC Commentary thereon, neither Article 87 nor the Additional Protocols Commentary offer guidance regarding the nature of the investigations that must be conducted into possible violations that come to the commander’s attention. However, certain conclusions can be derived from them. 1. The responsibility to enforce the requirement to identify, report, and respond to violations extends throughout the chain of command. 2. Although the article is framed in terms of commanders’ duties, it is clear that the intent was to create a seamless system for identifying and responding to potential and possible war crimes. Thus, an implied duty of reporting violations extends to everyone in the military. 3. The article contemplates a system of military self-policing that complements the broader duty of States to investigate and prosecute. It is accordingly proper for the military to take action in response to possible breaches. To the extent the military, in light of the attendant circumstances, fully examines incidents and appropriately punishes those responsible for violations, the State’s obligations have been met. 4. There is no prohibition on commanders investigating possible violations occurring within their own units or committed by others under their control. 5. The existence of a military justice system or the attachment of legal advisers to a unit does not relieve a commander of his or her responsibilities to respond to possible breaches. 40

Id. para 3562; see also Bothe et al. 1982, at 527–29. For instance, as of October 2010, the US Army has court-martialed 32 soldiers on murder or manslaughter charges arising from the deaths of civilians, convicting 22 of them (the number excludes those charged and convicted of lesser offenses, such as negligent homicide or aggravated assault). Savage 2010, at A9. 42 For instance, doing so might involve ‘‘informing superior officers of what is taking place in the sector, drawing up a report in the case of a breach, or intervening with a view to preventing a breach from being committed, proposing a sanction to a superior who has disciplinary power, or—in the case of someone who holds such power himself—exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence as it was possible to find.’’ AP Commentary, supra note 32, para 3562. 41

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6. That subordinate commanders have responsibility to investigate and otherwise repress breaches does not relieve superior commanders of the responsibility to address possible war crimes that have come to their attention and are not being effectively dealt with by those subordinates. 7. The emphasis on the criticality of command as a mechanism for handling possible violations suggests that methods of investigations that might undermine command functions and effectiveness are inappropriate.43

12.1.3 Customary International Humanitarian Law The fact that Protocol I is binding as such only on Parties thereto begs the question of the customary status of IHL norms regarding investigations and prosecution conducted by non-Parties, such as the United States and Israel. In its Customary International Humanitarian Law study, the ICRC asserts that the principles set forth in the 1949 Geneva Convention and Protocol I regarding investigations and prosecutions enjoy this status.44 Specifically, Rule 158 provides that ‘‘States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.’’45 Although less detailed than the corresponding treaty text, the rule generally captures the principles the treaty articles express. Rule 158 unquestionably reflects a customary norm. Beyond the 1949 Conventions and Protocol I, numerous other international law instruments articulate the obligation to investigate possible war crimes, or at least to prosecute those responsible for them. Examples include the Genocide Convention,46 Hague

43

For instance, it would be unreasonable to impose a requirement to report a possible violation only to a superior commander if that commander may have been involved in the incident. The duty to report borne by the subordinate would remain intact in such circumstances, but other means of bringing the matter to the attention of authorities capable of taking action would be acceptable. Similarly, it would generally not be appropriate for a subordinate commander to formally conduct an investigation into the activities of an immediate superior, since doing so would otherwise undermine the superior’s command authority and the command relationship may have a chilling effect on the subordinate’s conduct of a full and objective investigation. 44 It should be noted that the authoritativeness of the study has been questioned and, therefore, its determinations should be treated with caution. On the US position, see Joint Letter from John Bellinger and William Haynes to Jakob Kellenberger on Customary International Humanitarian Law Study, 46 I.L.M. 514 (2007). 45 CIHL, supra note 27, rule 158. 46 Convention on the Prevention and Punishment of the Crime of Genocide, Article IV, December 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.

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Cultural Property Convention and its Second Protocol,47 Torture Convention,48 Chemical Weapons Convention,49 Amended Landmines Protocol,50 Ottawa Convention on Landmines,51 Dublin Convention on Cluster Munitions,52 and the Statute of the International Criminal Court.53 Organs of the United Nations have likewise repeatedly cited the obligation to investigate and prosecute war criminals. Indeed, during its first session in 1946, the General Assembly called on Member States and non-members alike to take steps to apprehend war criminals and return them to those States where the offenses in question were committed.54 It has since urged States to investigate IHL violations and facilitate the prosecution of war criminals on multiple occasions.55 In particular, in 2005 the General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Paragraph 3 of the document provides that ‘‘[t]he obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to … [i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law.’’56 The requirements also appear at the national level. Fulfilling the obligation set forth in the Geneva Conventions, most States have passed legislation providing for

47

Convention for the Protection of Cultural Property in the Event of Armed Conflict, Article 7, May 14, 1954, S. Treaty Doc. no. 106-1 (1999), 249 U.N.T.S. 240; Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts Articles 15– 17, March 26, 1999, 38 I.L.M. 769. 48 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 7, December 10, 1984, S. Treaty Doc. no. 100.20, 1465 U.N.T.S. 85. 49 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Article VII(1), January 13, 1993, S. Treaty Doc. no. 103-21, 1974 U.N.T.S. 45. 50 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, amended Protocol II Article 14, May 3, 1996, 35 I.L.M. 1206. 51 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on Their Destruction, Article 9, September 18, 1997, 36 I.L.M. 1507. 52 Convention on Cluster Munitions, Article 9, December 3, 2008, 48 I.L.M. 357. 53 ICC Statute, supra note 21, pmbl. 54 G.A. Res. 3(I), U.N. Doc. A/RES/3(I) (February 13, 1946). 55 See, e.g. G.A. Res. 2338 (XXII), A/RES/2338(XXII) (December 18, 1967); G.A. Res. 2391 (XXIII), A/RES/2391(XXIII) (November 26, 1968); G.A. Res. 2583 (XXIV),A/RES/ 2583(XXIV) (December 15, 1969); G.A. Res. 2712, A/RES/2712(XXV) (XXV)(December 15, 1970); G.A. Res. 2840 (XXVI), A/RES/2840(XXVI) (December 18, 1971); G.A. Res. 3074 (XXVIII), A/RES/3074(XXVIII) (December 3, 1973). 56 G.A. Res. 60/147, Annex, para 3, A/RES/60/147 (December 16, 2005).

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jurisdiction over war crimes.57 Additionally, military manuals generally impose a duty on their armed forces to investigate and prosecute possible war crimes.58 For instance, a US commander is criminally responsible if ‘‘he failed to exercise properly his command authority or failed otherwise to take responsible measures to discover and correct violations that may occur.’’59 This is especially relevant in light of the Protocol I non-Party status of the United States. The British Manual of the Law of Armed Conflict achieves the same result by citing the language of Article 28 of the International Criminal Court Statute (to which it is Party) to confirm that a commander ‘‘becomes criminally responsible if he ‘knew or, owing to the circumstances at the time, should have known’ that war crimes were being or were about to be committed and failed ‘to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authority for investigation and prosecution.’’’60 The Manual points out that practical considerations reinforce this treaty obligation, for ‘‘[f]ailure by belligerent governments to investigate and, where appropriate, punish the alleged unlawful acts of members of their armed forces can contribute to the loss of public and world support, leading to isolation for the state involved.’’61 Finally, the duty to investigate and prosecute has been the subject of agreements between belligerents. For instance, in 1991 Croatia and Yugoslavia agreed that ‘‘[e]ach party undertakes, when it is officially informed of [an allegation of violations of IHL] made or forwarded by the ICRC, to open an inquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force.’’62 A similar agreement was executed by the parties to the conflict in Bosnia and Herzegovina the following year.63

57

See, e.g. War Crimes Act, 18 U.S.C. § 2441 (2006). The United States’ Commander’s Handbook on the Law of Naval Operations is illustrative: ‘‘Alleged violations of the law of armed conflict, whether committed by or against US, allied, or enemy personnel, are to be reported promptly through appropriate command channels. War crimes alleged to be committed by US personnel or its allies, must be investigated thoroughly, and where appropriate, remedied by corrective action. War crimes committed by enemy personnel will be reviewed for appropriate responsive action.’’ US Navy, NWP 1-14 M, The Commander’s Handbook on the Law of Naval Operations, para 6.1.2.1 (2007) [hereinafter NWP 1-14 M]. 59 Id. para 6.1.3. 60 UK Ministry of Defence, the Manual on the Law of Armed Conflict 438 (2004), [hereinafter UK Manual]. 61 Id. para 6.1.2. 62 Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia Article 11, November 27, 1991, quoted in CIHL, supra note 27, at 3946. 63 Agreement between Representatives of Mr. Alija Izetbegovic (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadzic (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkic (President of the Croatian Democratic Community) Article 5, May 22, 1992, quoted in CIHL, supra note 27, at 3947. 58

12.1

IHL Requirements

601

While the obligation undeniably constitutes a customary norm for belligerents during international armed conflict, its application in non-international armed conflict in less certain. On the one hand, Additional Protocol II (non-international armed conflict) contains no reference to investigations or prosecution, a curious omission in light of Protocol I’s explicit cross-reference to the related articles in the 1949 Conventions, and their further development in the context of the commander’s responsibilities. Common Article 3 to the Conventions, the sole provision in the instruments drafted specifically for conflicts ‘‘not of an international character,’’ likewise includes no such obligation. Nor does the commentary on the article imply one. It should also be noted that the ICRC’s commentary to the Customary International Humanitarian Law study’s Rule 158 is especially sparse when justifying extension of the norm to non-international armed conflict.64 On the other hand, the third paragraph of the Geneva Conventions’ articles on investigation and prosecution refers to ‘‘the suppression of all acts contrary to the provisions of the present Convention other than … grave breaches.’’ The Commentary confirms that the duty to suppress applies to any breach of the conventions,65 which would presumably encompass Common Article 3 violations. Additionally, the conventions cited above in support of the existence of a customary norm pertain to all armed conflicts, regardless of character.66 Perhaps most significantly, the Statute of the International Criminal Court makes no distinction between categories of armed conflict in either its preambular assertion that war crimes and other offenses ‘‘must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level’’ or in its mention in the article on command responsibility of situations in which a commander has failed to ‘‘submit the matter to the competent authorities for investigation and prosecution.’’67 This is particularly pertinent given that the Statute’s substantive delineation of war crimes differentiates between international and non-international armed conflicts. Inclusion of the notion of command responsibility for failure to prosecute in the Statute of the International Criminal Tribunal for Rwanda, which governs the prosecution of war criminals in that non-international armed conflict, further supports general applicability to such conflicts.68 The jurisprudence of international tribunals arguably supports extension of the obligation to investigate and prosecute to non-international armed conflict. In Tadic, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia surveyed the rules governing the conduct of hostilities during international armed conflict and argued that some now applied equally in internal

64 65 66 67 68

CIHL, supra note 27, at 609–10. GC I Commentary, supra note 23, at 367; GC IV Commentary, supra note 24, at 594. See text accompanying notes 42–48. ICC Statute, supra note 21, pmbl., Article 28. ICTR Statute, supra note 27, Article 6.

602

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conflicts as a matter of customary IHL.69 The Chamber cautioned, though, that ‘‘(i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.’’70 The caveat is important, for sweeping application of the law of international armed conflict to non-international armed conflict is a matter of some concern for States which understandably seek to preserve their discretion to handle internal conflict as they see fit. Such concern does not manifest itself in the case of a duty to investigate and prosecute. States are merely investigating and prosecuting violations of IHL to which they are subject, an obligation already implicit in the notion of pacta sunt servanda.71 Overall, it would appear defensible to assert that the requirement to investigate and prosecute war crimes attaches in both international and non-international armed conflict. Therefore, there is no basis for deviating from the scope of the relevant provisions deduced earlier.

12.2 The Interplay Between International Human Rights and Humanitarian Law Norms 12.2.1 Human Rights Norms Regarding Investigations As with IHL, human rights law mandates investigation when its norms have been breached. In particular, the International Covenant on Civil and Political Rights (ICCPR), which safeguards rights like that to life, requires States to ‘‘adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.’’72 The Human Rights Committee, in General Comment

69

Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, paras 111–27 (Int’l Crim. Trib. for the Former Yugoslavia October 2, 1995). 70 Id. para 126. 71 Vienna Convention on the Law of Treaties, Article 26, January 27, 1980, 1155 U.N.T.S. 331. It should be noted that States differ on the content of the customary IHL governing noninternational armed conflict. However, this is a different issue than that of investigation. Assuming a State accepts a purported norm as binding, it has no reason to object to an obligation to investigate its possible breach. 72 International Covenant on Civil and Political Rights, Article 2.2, December 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. The right to life is set forth in Article 6.1.

12.2

The Interplay Between International Human Rights and Humanitarian Law Norms

603

31, noted that ‘‘a failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.’’73 Human rights litigation is in accord. The European Court of Human Rights, applying the European Convention on the Protection of Human Rights and Fundamental Freedoms for parties thereto, has been particularly active in this regard.74 For instance, in McKerr v. United Kingdom, a case arising out of the troubles in Northern Ireland, the Court held that ‘‘the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.’’75 The decision set out a number of requirements for investigations. Governmental authorities must take ‘‘whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.’’76 The next of kin must also be involved in the process as necessary.77 In its assessment of the adequacy of investigation, the Court paid particular heed to the requirement for an independent investigation.78 In Ergi v. Turkey, which involved clashes between Turkey and Kurdish rebels, the Court similarly held that ‘‘[n]either the prevalence of violent armed clashes nor the high incidence of fatalities could displace the obligation under Article 2 to ensure that an effective, independent investigation was conducted into the deaths arising out of clashes with security forces, particularly in cases such as the present where the circumstances were in many respects unclear.’’79 Importantly, in Isayeva v.. Russia, a case involving Russia’s conflict in Chechnya, it noted that while the precise form of the requisite investigation varies according to circumstances, ‘‘it 73 U.N. Human Rights Comm., General Comment No. 31, Nature of the General Obligation Imposed on States Parties to the Covenant, para 15, U.N. Doc. CCPR/C/21/Re.1/Add.13 (May 26, 2004). In an individual communication in Bautista de Arellana v. Colombia, the Committee noted that, ‘‘the State party is under a duty to investigate thoroughly alleged violations of human rights … and to prosecute criminally, try and punish those held responsible for such violations.’’ U.N. Human Rights Comm. Communication No. 563/1993, para 8.6, (October 27, 1995). 74 European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature November 4, 1950, 213 U.N.T.S. 221. 75 McKerr v. United Kingdom, 2001-111 Eur. Ct. H.R. 475, para 111. 76 Id. para 113. 77 Id. para 115. 78 According to the court, this ‘‘means not only that there should be no hierarchical or institutional connection but also clear independence.’’ Id. para 112. On the requirement to investigate uses of force resulting in death, see also, e.g. McCann and Others v. the United Kingdom, 324 Eur. Ct. H.R. (ser. A) para 161 (1995); Kaya v. Turkey, 1998-I Eur. Ct. H.R. 324, paras 85–86. 79 Ergi v. Turkey, 1998-IV Eur. Ct. H.R. 1776, para 85.

604

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may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events.80 Other human rights tribunals have arrived at comparable conclusions.’’81 Beyond case law, bodies concerned with implementing the requirement to investigate in the human rights context have added significant granularity to the form of the investigations, especially those involving the use of force.82 As an example, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials requires governments and law enforcement agencies to ‘‘ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances’’ and to send a detailed report ‘‘promptly to the competent authorities responsible for administrative review and judicial control, whenever a death or serious injury results.’’83 Those affected by the alleged violation (or their legal representatives) must enjoy access to an independent process, including a judicial process, and, in the event of their death, the right applies to their dependents.84 The United Nations’ Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions likewise call for ‘‘thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death.’’85 They set out guidance on the collection of evidence, autopsies, calling witnesses, disposal of the body, and the availability of budgetary and technical resources.86

12.2.2 Applicability of Human Rights Norms in Armed Conflict It is evident that the requirements for investigation under human rights law differ substantially from those elucidated in IHL in terms of depth and specificity. Accordingly, an important question arises as to the extent to which these human rights practices bear on investigations conducted during an armed conflict. 80

Isayeva and Others v Russia, 2005 Eur. Ct. H.R. 128, paras 210–11. See generally Case of the Ituango Massacres, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 148 (July 1, 2006); Case of the ‘‘Mapiripan Massacre,’’ Judgment, Inter-Am. Ct. H.R. (ser. C) No. 134 (September 15, 2005). 82 On the norms, and their application in situations of armed conflict, see generally Watkin 2004. 83 Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27–September 7, 1990, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, para 22, U.N. Doc. A/CONF.144/28/Rev.1. 84 Id. para 23. 85 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, E.S.C. Res. 1989/65, para 9, U.N. Doc. E/1989/89 (May 24, 1989). 86 Id. paras 9–17; see also Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 55/89, Annex, U.N. Doc. A/Res/55/89/Annex (February 22, 2001). 81

12.2

The Interplay Between International Human Rights and Humanitarian Law Norms

605

Whenever a human rights tribunal has authoritatively interpreted a human rights treaty to which a State is Party, that interpretation will govern the State’s actions. For instance, decisions of the European Court of Human Rights regarding applicability of the European Convention in armed conflict bind the United Kingdom. But what rules generally apply to the relationship between IHL and human rights law and how does that relationship bear on the legal sufficiency of investigations? Although both bodies of law afford protection to individuals, the foundational logic of human rights law and IHL differ. Human rights law, acknowledging that States enjoy disproportionate power over individuals, seeks to safeguard them from the abuse of that power by imposing limits on its exercise through the mechanism of ‘‘rights.’’ At its core is the relationship between the State (and its agents) and those individuals over whom it exercises control (jurisdiction). By contrast, IHL is premised on a delicate balance between two competing State interests—being able to effectively use force when embroiled in an armed conflict (military necessity) and the protection of those for whom the State is responsible (humanity). The rules of IHL therefore represent a compromise negotiated by States, either through treaty or customary law based in State practice and opinio juris, over how best to accommodate these interests.87 Given their divergent purposes, human rights and IHL cannot simply be superimposed on armed conflict, nor are they fungible. In the past, some experts argued that human rights law occupied no place in armed conflict.88 Today, this view has generally been rejected, although it is essential to appreciate that the scope and manner of application in armed conflict is nuanced.89 For instance, the 87

The classic example is the rule of proportionality, by which an attack may be conducted against a military objective even when civilians and civilian objects will be harmed, so long as the expected incidental harm is not excessive relative to the military advantage anticipated to accrue from the attack. AP I, supra note 22, Articles 51, 57; CIHL, supra note 27, Chap. 4. 88 Contemporary arguments against applicability tend to be more sophisticated. For instance, applying human rights law in particular armed conflicts may be objected to on the basis that a relevant treaty norm was not intended to apply in armed conflicts or that human rights law has no extraterritorial effect, positions that have been advanced most notably by the United States. See generally Dennis 2005. 89 It has been perceptively pointed out that there are at least three situations during armed conflict where it makes sense to apply, to a degree, certain human rights norms: occupation, noninternational armed conflict, and counter-terrorism. The instance and scope of applicability will depend in great part on whether the situation involves an incident directly related to the conduct of the armed conflict or one where the nexus with the conflict is attenuated. See Watkin 2004, at 2. Thus, for example, whereas IHL norms on the use of force will apply to fighting organized armed groups during an occupation, human rights norms may govern various forceful actions taken by an occupant to comply with its duty to generally maintain law and order in occupied territory. By this position, an investigation into the excessive use of force while solely performing standard policing duties could be subject to most, and perhaps all, human rights standards to which the occupant was, as a matter of law, subject. But an investigation into an incident occurring during a fire fight with an insurgent group would involve further analysis, for IHL would apply to the incident, thereby making it necessary to determine the relationship between the two legal regimes. For an interesting, albeit somewhat controversial, discussion of the relationship between IHL and human rights, see generally Delahunty and Yoo 2010.

606

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United States maintains the position that human rights law, absent a specific treaty provision to such effect, does not apply extraterritorially.90 And in Bankovic, the European Court of Human Rights rejected an application to consider an alleged violation of the European Convention on Human Rights during NATO’s bombing of the Federal Republic of Yugoslavia in 1999 on the basis that NATO did not exercise ‘‘effective control’’ over the site of the attack.91 The International Court of Justice has repeatedly confirmed the general premise that human rights apply in armed conflict. More importantly, it has addressed the manner in which IHL and human rights law relate. The Court held in the Nuclear Weapons advisory opinion that while the ICCPR applies during armed conflict, the determination of when a killing is arbitrary in violation of Article 6.1’s prohibition on arbitrary deprivation of life is determined by reference to the lex specialis of IHL.92 In other words, the human rights standard is to be interpreted in accordance with the specialized body of law designed for armed conflict. This relationship was further developed in the Wall advisory opinion, where the Court highlighted three possibilities: ‘‘some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.’’93 It went on, consistent with Nuclear Weapons, to apply the principle of lex specialis. Citing Wall in the Congo case, the Court applied both IHL and human rights instruments to find Uganda in violation of its obligations while in occupation of territory in the Congo.94 Although the latter two cases dealt with the unique situation of occupation, Nuclear Weapons addressed the conduct of hostilities. Thus, at least in the Court’s jurisprudence, the cohabitation of IHL and human rights law reaches to the very core of armed conflict.95

90

For example, the position taken by the United States regarding the International Covenant on Civil and Political Rights. U.N. Human Rights Comm., Third Periodic Reports of States Parties Due in 2003: United States of America, at 109, U.N. Doc. CCPR/C/USA/3 (November 28, 2005). 91 The Court held: ‘‘In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.’’ Bankovic & Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom 123 Eur. Ct. H.R 335, para 71 2001. 92 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, para 25 (July 8); ICCPR, supra note 72, Article 6.1. 93 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, para 106 (July 9). 94 Case Concerning Armed Activity on the Territory of the Congo (Dem. Rep. of Congo v. Uganda), Judgment, 2005 I.C.J. 168, paras 216–220 (December 19). 95 Recall, as discussed above, that the United States takes a very restrictive view as to any extraterritorial application of human rights law.

12.2

The Interplay Between International Human Rights and Humanitarian Law Norms

607

The principle of lex specialis highlighted by the Court represents the key to determining the adequacy of a human rights investigation into a breach of a human rights norm during armed conflict.96 Lex specialis can apply in one of two ways in relation to lex generalis. First, the lex specialis may directly conflict with the lex generalis. In such a case, the lex specialis prevails. An example that is presently the subject of much discussion is a purported duty to capture (if possible), rather than kill, enemy combatants and civilians directly participating in hostilities.97 Human rights law contains precisely such a duty.98 By contrast, since enemy combatants and directly participating civilians constitute lawful targets under IHL, until they surrender or are otherwise rendered hors de combat, it is lawful to kill them even when capture is feasible.99 In that the action occurs during armed conflict, the lex specialis IHL norm supplants the lex generalis human rights standard. That is not the situation with regard to investigations, for they are mandated in both human rights law and IHL. This raises the second possible application of the lex specilis principle—interpretation of the lex generalis by reference to the lex specialis. The paradigmatic case was cited above, determining arbitrariness under human rights law by reference to IHL. Applying the principle in the investigations context, the nature and scope of the IHL requirement to investigate will shape the analogous obligation in human rights law. This makes sense. As noted by the European Court of Human Rights in Isayeva, the manner in which human rights driven investigations must be conducted necessarily varies according to the attendant circumstances; the standards are contextual.100 Obviously, a State’s ability to conduct investigations during an ongoing conflict is much less robust than in peace time. Evidence may have been destroyed during the hostilities, civilian witnesses may have become refugees or internally displaced persons, military witnesses may be deployed elsewhere or be engaged in combat, territory where the offense occurred may be under enemy control, forensic and other investigative tools may be unavailable on or near the battlefield, military police may be occupied by other duties such as prisoner of war handling, legal advisers may be providing conduct of hostilities advice, judicial bodies may be distant from the theatre of operations, communications may be degraded, travel may be hazardous, and so forth. Most importantly, it must be remembered that the military forces, which may represent the sole governmental authority in the area, have a mission to accomplish other than conducting investigations. Accordingly, 96

For a thoughtful discussion of the subject, see Hampson 2008. The issue is the subject of some debate. See, e.g. Parks 2010; Schmitt 2010, pp. 39–43. 98 See, e.g. McCann, 324 Eur. Ct. H.R. (ser. A) para 236, where the Court held that ‘‘the use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk.’’ See also HCJ 769/02, Public Comm. Against Torture in Israel v. Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285, para 40. 99 See, e.g. AP I, supra note 22, Article 41; CIHL, supra note 27, rule 47. 100 Isayeva, 2005 Eur. Ct. H.R. para 209. 97

608

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human rights measures deemed appropriate in the relative stability of peacetime, such as the duty to conduct autopsies, involve family members, or maintain strict chains of custody, would generally be ill-suited to the realities of conducting an investigation in the midst of combat or its immediate aftermath.101 IHL is, by contrast, sensitive to such factors because it was developed by States with the specific context of armed conflict in mind. Therefore, it is inappropriate to refer to human rights law practice to fashion standards for investigations of war crimes occurring during hostilities. Not only would doing so turn the notion of lex specialis on its head, it would be illogical. Instead, in much the same way that it is sensible to have IHL legally and practically inform the human rights notion of arbitrariness, and quite aside from the legal requirement to do so pursuant to the lex specialis principle, it is practical to apply IHL investigatory standards when determining whether the human rights investigatory requirements have been met in situations of armed conflict. In this regard, the Goldstone Report identified four ‘‘universal principles’’ of investigations—independence, effectiveness, promptness, and impartiality.102 Although the report derived the principles from the work of human rights courts and bodies, similar principles surely infuse the IHL requirement to investigate.103 The principle of independence is reflected, for instance, in the requirement that subordinates not be tasked to investigate possible misconduct by their immediate superiors. Effectiveness is an implicit characteristic of all investigations. A requirement of promptness is evident in the duty imposed on individuals throughout the chain of command to report possible violations, for the comprehensiveness of the requirement facilitates prompt reporting. The obligation to report and investigate possible violations by both the enemy and one’s own forces evidences impartiality. As a general matter, there is no inconsistency between the broad principles applicable in human rights and humanitarian law investigations. The question, then, is how do States translate these general principles into practices applicable to situations of armed conflict.

101 A word of caution is due. This analysis is not meant to suggest that measures highlighted in the human rights context cannot or should not be taken when armed conflict is involved. Armed conflict can range from tranquil occupation to high intensity combat. What is required under IHL will therefore be case specific. As with much of IHL, the only viable standard is one of reasonableness in the circumstances. 102 Goldstone Report, supra note 4, para 1611. 103 Human Rights Watch has suggested that the standard for investigations of war crimes is that they be ‘‘prompt, thorough, and impartial and that the ensuing prosecutions also be independent.’’ Human Rights Watch 2010b, at 7.

12.3

State Practice

609

12.3 State Practice Although certain features of IHL investigations were teased from the extant law in Sect. 12.1, the lex scripta of IHL fails to fully develop the requisite investigatory standards. Thus, whether the IHL standards are being applied to assess the adequacy of an investigation into possible war crimes or as the lex specialis in a human rights investigation, it is necessary to look to State practice to populate the content of the law. In an effort to do so, the practices of four States will be examined—Canada, Australia, the United Kingdom, and the United States.104 Each of these States enjoys a well-developed military justice system and is served by an active and well-trained judge advocate department. The four, despite periodic criticism, embrace the concept of rule of law, benefit from an active civil society that watches over their actions, and conduct regular reviews of the actions of their forces on the battlefield.105 Admittedly, obstacles to the reliance on these particular case studies exist. Legal concerns do not motivate all their investigative practices. Many reflect policy choices influenced by factors like resources, particular political perspectives, international relations, and historic experience. The practices may also be mandated not by a sense of legal obligation emanating from IHL, but instead by domestic legislation or specific human rights norms applicable to the State in question (as in the case of the United Kingdom and the European Convention). Perhaps most significantly, these four States do not typify the vast majority of nations, many of which field no uniformed judge advocates or posses the resources on the battlefield to conduct robust investigations. Nevertheless, because of their normative maturity and sophistication, in addition to the fact that theirs are presently ‘‘fighting armies’’ involved in armed conflicts around the world, the practices of these States can be usefully distilled to set a threshold of investigatory independence, effectiveness, promptness, and impartiality which will comply with the somewhat vague requirements of IHL. Practices falling short of these standards, however, do not necessarily fail to comport with IHL.

104

Both Israel and human rights NGOs have likewise focused on these four countries to examine practices. State of Israel 2010b, pp. 21–25; Open Society Justice Initiative 2010. However, this article examines the practices of the four countries anew; its discussion has been reviewed by senior officers from each of the countries involved, although they preferred not to be named. 105 It should be acknowledged that all four countries are from the common law tradition. However, while civil law practices may be different, common law practices are equally authoritative and lex lata must take into account both.

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12.3.1 Canada To place Canadian investigative mechanisms in context, it is essential to understand that its military justice system is in part the consequence of the Canadian military’s traumatic experience in Somalia, where in 1993 members of the Canadian Airborne Regiment deployed in support of the United Nations Mission in Somalia (UNOSOM) were involved in the abuse and death of several Somalis. In addition to prosecution of the offenders, Canada launched several major investigations that eventually resulted in fundamental changes to the Canadian military justice system through amendment of the National Defence Act.106 Of particular concern was the system’s independence, both organizationally (relation to the chain of command) and functionally (performance of judicial and quasi-judicial functions, such as exercising prosecutorial discretion). Accordingly, the new legislation separated, on an institutional basis, the investigative, prosecutorial, defence, and judicial functions by creating the posts of Court Martial Administrator, Director of Military Prosecutions, and Director of Defence Counsel Services. It also established an external Military Police Complaints Commission (MPCC) to investigate complaints from any individual, civilian or military, regarding military police conduct, and to consider allegations of improper interference in military police investigations by military personnel or senior Ministry of National Defence officials.107 Additionally, in order to create an investigative capability independent of the chain of command, the Minister of National Defence established the Canadian Forces National Investigation Service (CFNIS), which reports to the Canadian Forces Provost Marshall (CFPM—senior military policeman).108 That the changes resulted from an incident occurring during hostilities, albeit a peace operation, renders the Canadian experience especially relevant. However, it must be cautioned that the revisions to the military justice system resulted as much from constitutional requirements in domestic Canadian law. In 1992, the Canadian Supreme Court found in the Genereux case that Canada’s General Court-Martial lacked the independence and impartiality required by the Canadian Charter of Rights and Freedoms.109 This being so, any conclusions based on Canadian

106

National Defence Act, R.S.C. 1985, c. N-5 (Can.) [hereinafter National Defence Act]. In the incident one Somali was tortured and killed, one was killed, and another wounded while running away from the Canadian compound. On the investigations, see Special Advisory Group on Military Justice and Military Police Investigation Services 1997. 107 National Defence Act § 250. 108 Canadian Forces Nat’l Investigation Serv., 2007 Annual Report 5 (2007) [hereinafter 2007 Report]. 109 R. v. Généreux, [1992] S.C.R. 259. The case recognized the military justice system as a coequal constitutional partner to the civilian justice system and launched a process of increased integration of civilian criminal justice constitutional concepts into military justice. Of particular note, it removed the chain of command from many decisions, such as convening courts-martial. However, commanders still performed an investigatory function, and the charging function was, as discussed infra, shared with the CFNIS.

12.3

State Practice

611

practice must be carefully drawn, for they do not necessarily derive from the implementation of international law requirements. The Canadian Law of Armed Conflict Manual imposes on commanders the duty of ensuring that members of the forces they lead are ‘‘aware of their responsibilities related to LOAC and that they behave in a manner consistent with the LOAC.’’110 Commanders are further required to ‘‘suppress and to report to competent authorities, breaches of the LOAC.’’111 A commander who becomes aware that ‘‘subordinates or other persons under his control … have committed a breach of the LOAC’’ must ‘‘initiate disciplinary or penal actions against these persons.’’112 Those who fail to ‘‘take all feasible measures within their power’’ in performing this duty have themselves acted unlawfully.113 Investigations of misconduct can occur through either administrative or law enforcement channels. Administrative investigations that do not clearly involve criminal actions may be conducted by Summary Investigations or Board of Inquiry. A commander may order a Summary Investigation into any matter affecting his or her command unless a conflict of interest exists or his or her superiors are implicated.114 The Minister of National Defence and commanders may order Boards of Inquiry.115 More formal than Summary Investigations, boards may be convened for serious matters, such as aircraft accidents or deaths of service members. Consisting of at least two officers, they may call witnesses, receive evidence, and examine records.116 It is essential to understand that the primary purpose of a Summary Investigation or Board of Inquiry is to inform the commander. As such, resulting reports may not be subsequently admitted into evidence at trial and statements made by witnesses are excluded as evidence against them in a subsequent court-martial.117 They are thus administrative fact-finding entities,

110

Office of the Judge Advocate Gen. 2003, paras 1504, 1621.2. The acronym ‘‘LOAC’’ refers to the ‘‘law of armed conflict.’’ It is essentially synonymous with IHL, although it is sometimes interpreted as including the law governing when a State may use force as an instrument of its national policy. 111 Id. § 8 para 1621.1. 112 Id. § 8 para 10621.3. 113 Id. § 8 para 1622. Although this article focuses on the military system, it must be noted that the Canadian Attorney General is responsible for implementation of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. Canadian Forces members are subject to the act, but cases have been dealt with exclusively within the military justice system for violations of military law. For instance, an infantry officer has recently been convicted (sentencing pending) of disgraceful conduct in shooting a wounded Taliban. Brennan 2010. 114 Canadian Forces, Queen’s Regulations and Orders for the Canadian Forces, Article 21.01 [hereinafter QR&O]. See also National Defence Act § 45. 115 QR&O, supra note 114, Article 21.06. 116 Id. Articles 21.08, 21.10. Note that civilians may serve on Boards of Inquiry if appropriate in the circumstances. 117 Id. Articles 21.10, 21.16.

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and not prosecutorial in nature.118 Should evidence of criminality be uncovered, a Board should adjourn and refer the matter to the CFNIS. The CFNIS enjoys jurisdiction over all persons subject to the Code of Service Discipline, regardless of rank.119 Comprised of military personnel specially trained in investigative techniques, it conducts most investigations of alleged IHL violations since they involve ‘‘serious or sensitive service and criminal offences against property, persons, and the Department of National Defence.’’120 Incidents not rising to this level, which would be rare, may be investigated either by other military police units or the command itself. However, once the incident reaches the ‘‘serious or sensitive’’ threshold, as in a case where there is prima facie evidence of a war crime, it must be transferred to the CFNIS.121 Military members may report possible violations directly to the CFNIS. Reports may also be generated through military command channels or referred from outside the military. For instance, in 2007 Amnesty International filed a complaint with the MPCC regarding alleged mistreatment of Afghan civilians. The complaint was forwarded through the CFMP to the CFNIS for investigation.122 The following year, a Canadian academic at the University of Ottawa filed a similar complaint alleging prisoner mistreatment that was subsequently forwarded to the 118 As an example, in 2006 a Board of Inquiry was convened to investigate an incident involving detainee handling. A rear admiral and two colonels were appointed to the board, which had the benefit of numerous advisers (legal, military police, public affairs, etc.). The board was instructed to make the following findings:

1. Describe the specific details of the 14 June 2006 incident, regarding a person in CF custody, who was handed over to Afghan authorities and then taken back by CF personnel; 2. Identify all reports relating to the 14 June 2006 incident, made through the chain of command up to Comd CEFCOM, describing their form and to whom they were sent; 3. Determine to what conduct the words ‘‘police did assault him as it happened in the past’’ in the section commander’s notes refer; and 4. Identify the process and doctrine in place at the time for reporting on detainees in Afghanistan, through the Comd TFA to Comd CEFCOM. The Board of Inquiry was cautioned that should it ‘‘receive evidence that it reasonably believes relates to an allegation of a criminal act or a breach of the Code of Service Discipline (CSD), the BOI shall adjourn; the Convening Authority shall be notified, and the matter shall be referred to the nearest Judge Advocate General (JAG) representative for advice.’’ Nat’l Def. and Canadian Forces Board of Inquiry into Detainee Incident—14 June 2006, http://www.vcdsvcemd.forces.gc.ca/boi-cde/bid-ced/co-oc-eng.asp (last modified January 28, 2010) [hereinafter Board of Inquiry into Detainee Incident]. 119 Nat’l Def. and Canadian Forces, the Canadian Forces National Investigation Service (CFNIS), http://www.vcds.forces.gc.ca/cfpm-gpfc/cfpggp/nis-sne/index-eng.asp (last modified April 26, 2007). Jurisdiction also extends to Canadian civilians accompanying Canadian forces in the field. See National Defence Act, Part III. 120 Nat’l Def. and Canadian Forces, Backgrounder: the Canadian Forces National Investigation Service Investigation Process, http://www.cefcom.forces.gc.ca/pa-ap/nr-sp/doc-eng.asp?id=2960 (last modified April 27, 2010) [hereinafter Backgrounder]. 121 See, e.g. Board of Inquiry into Detainee Incident, supra note 118. 122 2007 Report, supra note 108, at 11.

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CFNIS for investigation, as was an allegation by a Member of Parliament that Canadian forces were ignoring sexual assaults on young Afghan males by members of the Afghan armed forces.123 Although CFNIS personnel serve alongside operational units when deployed, they report directly to the CFPM to ensure independence.124 Throughout the process, and especially before charging an individual, the CFNIS receives legal advice from military prosecutors, although the CFNIS and prosecutors are independent of each other organizationally and operationally.125 Once a charge has been levelled against a military member, the case will be handled by the Canadian Military Prosecution Service (CMPS), which screens cases for trial, tries them, and handles appeals before the Court-Martial Appeal Court (CMAC).126 The independence of the prosecutorial function is guaranteed in a number of ways. The CMPS is led by the Director of Military Prosecutions (DMP) appointed by the Minister of Defence for a term not to exceed four years.127 Although a uniformed Canadian legal officer within the Office of the Judge Advocate,128 the DMP exercises substantial independence in performing prosecutorial functions. For example, while the Judge Advocate General (JAG— see below) may issue both general and case specific instructions to the DMP, the instructions must generally be made public.129 Further, while the DMP is expected to keep the chain of command fully informed of a case’s progress, such communication may not come at the expense of prosecutorial discretion.130 Similarly, strict guidelines govern relations and communications between prosecutors and legal advisers assigned to units.131

123

Canadian Forces Nat’l Investigation Serv. 2008. It should be noted with regard to the latter case that Parliamentary Committees may conduct investigations on their own accord. 124 Backgrounder, supra note 120. 125 Director of Military Prosecutions, Policy Directive no. 001/00: Relationship with Canadian Forces National Investigation Service (2009), available at http://www.forces.gc.ca/jag/ publications/CMPS-SCPM/policy-politiques-001-eng.pdf. The Policy Directive was initially issued on March 1, 2000 and was updated on March 18, 2009. 126 Nat’l Def. and Canadian Forces, Canadian Military Prosecution Service, http:// www.forces.gc.ca/jag/justice/prosecutions-poursuites-eng.asp (last modified October 12, 2010). 127 National Defence Act § 165.1–165.17. 128 DMP & DDCS are under the general supervision of the JAG by virtue of National Defence Act §§ 165.17 and 249.2 (respectively). 129 Nat’l Def. and Canadian Forces, Canadian Military Prosecution Service, supra note 126. To date, the authority to issue instructions has not been exercised by any JAG. 130 Director of Military Prosecutions, Policy Directive NO. 005/99, Communications with Service Authorities (2009), available at http://www.forces.gc.ca/jag/publications/CMPS-SCPM/ policy-politiques-005-eng.pdf. The Policy Directive was initially issued on March 15, 2000 and was updated on March 18, 2009. 131 Director of Military Prosecutions, Policy Directive NO. 009/00, Communications with Unit Legal Advisors (2009). The Policy Directive was initially issued on March 15, 2000 and was updated on March 18, 2009.

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The Director of Defence Counsel Services enjoys even greater independence, for there is no provision for receiving instructions from the JAG. Military lawyers assigned to the directorate to defend service personnel before military courts fall outside the unit chain of command.132 Military judges are also independent of the chain of command as a direct result of the Genereux holding.133 The senior-most lawyer in the Canadian Forces is the Judge Advocate General, a general officer statutorily responsible to the Minister of National Defence.134 He or she provides legal advice to the Minister, Deputy Minister, and military chain of command. The independence of the JAG from the chain of command is mirrored more generally by service regulations that provide that legal officers are assigned to the Office of the JAG and not to the military chain of command.135 Although his or her oversight of courts-martial is limited as described above, the JAG remains statutorily responsible for the superintendence and administration of the overall Canadian military justice and disciplinary system.

12.3.2 Australia Australian Defence Doctrine requires that all Australian Defence Force (ADF) members be trained in IHL and imposes the responsibility for ensuring compliance with the law on commanders.136 Citing the post-World War II case of Yamashita, it provides that commanders will be held responsible if they know or should have known that subordinates have committed a war crime and fail to punish them.137 This obligation implies a duty to investigate. As a result of a 2005 report from the Australian Parliament’s Senate Foreign Affairs and Defence and Trade Committee, the military justice system is being comprehensively reformed to, inter alia, enhance the independence of the system.138 The process was complicated by the 2009 decision of the High Court in the case of Lane v. Morrison. There, the Court invalidated the Australian Military Court, which had been established in 2007 to try serious cases involving members

132

Nat’l Def. and Canadian Forces, Directorate of Defence Counsel Services, http:// www.forces.gc.ca/jag/justice/defence-defense-eng.asp#ourlawyers (last modified September 14, 2010). 133 Nat’l Def. and Canadian Forces, Chief Military Judge (CMJ), http://www.jmccmj.forces.gc.ca/index-eng.asp (last modified September 30, 2010). 134 National Defence Act § 9. For a discussion of the role of the JAG, see Nat’l Def. and Canadian Forces, JAG: Military Law, http://www.forces.gc.ca/jag/lawloi/index-eng.asp (last modified July 28, 2010). 135 QR&O, supra note 114, Articles 4.081(1), 4.081(4). 136 Australian Def. Headquarters 2006, paras 13.2 and 13.6. 137 Id. para 13.5. 138 Staff of S. Comm. on Affairs, Def. and Trade References 2005. On the reforms, see Staff of S. Comm. on Affairs, Def. and Trade References 2009.

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of the ADF, as violating the Constitution.139 Thus, the system described below is currently in flux. As with the Canadian system, possible violations of IHL may be dealt with either through administrative proceedings or the military prosecutorial system. In most cases, examination of an incident commences with the Quick Assessment (QA). Such assessments are appropriate whenever ‘‘any significant incident, allegation or problem … comes to the attention of the commander/supervisor.’’140 Should the commander or other responsible officer determine that an inquiry or investigation (see below) may be merited, he or she is obligated to direct a Quick Assessment.141 The QA, in which a military member appointed by the officer concerned examines the facts and circumstances of a matter within 24 hours, is the starting point for most inquiries or investigations.142 The primary purpose of the QA is to determine whether further action is required. Subsequent action may involve such steps as convening a more formal administrative inquiry, transferring the matter to the Australian Defence Force Investigative Service (ADFIS) for disciplinary or criminal investigation, or referring the matter to the Australian Federal Police. The QA is merely an initial administrative procedure designed to quickly gather facts. It ‘‘must not prevent or interfere with the immediate requirement for notification to the relevant ADF Investigative Service (ADFIS) or Code of Conduct delegate, or investigation by ADFIS or civilian authorities.’’143 In the event evidence of criminal activity is uncovered, the matter must be forwarded to military law enforcement and legal personnel. A number of more formal administrative inquiries exist to consider a matter. They include: 1. Routine Inquiry, an informal administrative inquiry into relatively simple matters; 2. Investigating Officer Inquiry, a formal administrative inquiry involving matters that are more serious, and which attach certain privileges, immunities, rights, and responsibilities in accordance with the Defence (Inquiry) Regulations; 3. Board of Inquiry or a Commission of Inquiry, a quasi-judicial administrative inquiry during which, for example, civilian witnesses subject to its jurisdiction can be compelled to testify, witnesses can have legal representation, and proceedings are generally made public; and 3. Combined Board of Inquiry, an administrative Board of Inquiry involving the participation of the forces of other countries.144 139

Lane v. Morrison (2009) 239 CLR 230, 236 (Austl.). Dep’t of Def., Defence Instructions (General), Admin. 67-2, para 8 (August 7, 2007) (Austl.). 141 See generally id. 142 Extensions may be requested from, and granted by, the investigating officer. Id. para 11. 143 Id. para 8. 144 Robert Creyke, Dir., Austl. Ctr. for Military Law & Justice, Address at the Defence Watchdogs Seminar, 2 (November 26, 2008), available at http://law.anu.edu.au/ ACMLJ%5CWatchdogs/Creyke.pdf. Defence Instructions (General), supra note 140, at C-1–C-3. 140

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Like their Canadian counterparts, Australian administrative inquiries serve a fact-finding function and are not designed to build a case for prosecution.145 Typically, they will be ordered by a commander and conducted by military personnel detached temporarily to perform the inquiry. The aim is to establish what occurred and what needs to be done (if anything) to prevent recurrence. ADF personnel can be subject to adverse administrative action, which can include termination of service in the ADF, as a consequence of such administrative inquiries. If, during the course of any administrative inquiry, the inquiry officer forms a view that a disciplinary or criminal offense may have taken place, he or she must inform the authority which directed the inquiry (‘‘Appointing Authority’’) to allow consideration of whether to refer that part of the inquiry to ADFIS (or the respective Service Police for lower level issues) for investigation. As an example, in 2009 the Australian Chief of Joint Operations appointed an investigating officer to inquire into an incident involving civilian casualties during an air strike against individuals believed to be implanting an improvised explosive device (IED).146 The officer formally interviewed witnesses, including an American service member, and considered the rules of engagement, targeting guidance, and targeting procedures. He ultimately concluded that those killed in the engagement were not innocent civilians but were instead laying an IED, and that the attack complied with the rules of engagement and other guidance.147 The recommendations in his report suggest the range of measures that might be taken based on such inquiries. The investigating officer recommended no further investigation by the Australian Defence Force Investigative Service, no administrative action against anyone involved, no change to targeting practices, and no ex gratia payments. He did recommend that legal officers and command groups receive training in kinetic operations specific to Afghanistan.148 As noted, the matter will generally be turned over to the ADFIS when criminal misconduct is identified unless it is minor, in which case it will be addressed by the service police of the respective service. This would be rare in the case of a war crime. The military Provost Marshall, who reports directly to the Chief of the Defence Force, leads the ADFIS. Its members are also military, drawn from the three services.149

145

On procedures during the inquiries, see Australian Def. Force, Australian Defence Force Publication 6.1.4: Administrative Inquiries Manual (2006). 146 See Report of an Inquiry Officer, Possible Civilian Casualties from Close Air Support Strike at Afghanistan on 28 April 09, available at http://www.abc.net.au/mediawatch/transcripts/ 1011_redacted.pdf; see also Report of an Inquiry Officer into the Shooting of Two Afghan National Policemen, 11 August 2009, available at http://www.defence.gov.au/coi/reports/ EOF_R.pdf. 147 See Report of an Inquiry Officer, Possible Civilian Casualties from Close Air Support Strike at Afghanistan on 28 April 09, supra note 146, paras 38–39. 148 Id. para 41. 149 Dep’t of Def., Australian Defence Force Investigative Service Fact Sheet, http:// www.defence.gov.au/mjs/resources/1ADFIS%20fact%20sheet%20-%20October%202007.pdf.

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Avenues of prosecution include action through the military criminal justice system under the Defence Force Discipline Act and civilian prosecution pursuant to legislation such as the Commonwealth Criminal Code, which domestically implements the International Criminal Court Statute.150 Although the ADF Legal Service, headed by a military Director General (one star) and a civilian (two star equivalent), generally oversees legal operations in the ADF, it is not responsible for the day-to-day running of the upper levels of the military disciplinary system.151 That responsibility currently lies in the hands of the Judge Advocate General (JAG), a title not to be confused with that of the ‘‘JAG’’ in Canada. In Australia, the JAG must be a Federal Court or a State Supreme Court judge appointed by the Governor General for a term not to exceed seven years.152 Deputy JAGs from each of the services, and who serve under the same conditions, assist the JAG. The JAG sets procedural rules for tribunals, performs final legal review of proceedings within the ADF, and takes part in the appointment of Defence Force Magistrates, Presidents and members of courts-martial, and legal officers for various purposes.153 The Director of Military Prosecutions, who is appointed by the Minister for Defence, oversees prosecutions. Like the JAG, he or she is independent of the chain of command.154 A number of oversight mechanisms exist to monitor performance of the system. While the aforementioned reforms are underway, there is a requirement for annual progress reports to Parliament. Additionally, the Inspector General of the ADF (IGADF), who is independent of the chain of command and reports directly to the Chief of Defence Force, reviews and audits the military justice system (both the disciplinary system and the administrative inquiries and consequences system). The IGADF may also receive complaints or submissions regarding the system from any individual regarding matters ranging from denial of due process to cover up or failure to act.155

150

Defence Force Discipline Act 1982 (Cth) S 10 (Austl.); Criminal Code Act 1995 (Cth) div 268 (Austl.). 151 It would be common, however, for the vast minor disciplinary matters to be handled by commanders pursuant to their powers as such under the DFDA. In such cases, they would be advised by attached legal officers on processes, but not with regard to prosecution or defense. 152 Defence Force Discipline Act 1982, §§ 179–88. 153 This system is likely to change in the near future if Parliament passes a bill to create a Military Court of Australia under Chapter III of the Constitution. . 154 Defence Force Discipline Act 1982, pt. XIA. 155 Dep’t of Def., Organizations within the Military Justice System that can Provide Assistance to ADF Members, http://www.defence.gov.au/mjs/organisations.htm (Austl.).

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12.3.3 United Kingdom As with their Canadian and Australian counterparts, British commanders are obligated to ensure their troops understand and comply with IHL. They are criminally responsible if they become aware of a possible violation and fail to ‘‘submit the matter to the competent authority for investigation and prosecution.’’156 Potential IHL violations may be the subject of military investigations or of inquiries. Under the Armed Forces Act of 2006, Service Inquiries may be directed by commanders and other officers of appropriate seniority.157 The inquiry panel receives terms of reference by which to conduct the inquiry, which may include incidents that could raise IHL matters. Regulations issued pursuant to the Act set forth detailed provisions with regard to this process.158 The investigations are factfinding in nature, not prosecutorial. Should the panel determine that a crime may have been committed, it is generally required to adjourn and refer the case to military law enforcement officials. Typically, though, an incident in which suspicion of an IHL violation exists will be dealt with by such officials from the outset. The ‘‘Service Police,’’ consisting of the military police of the three services, has authority over all members of the armed forces.159 The Armed Forces Act requires that any officer who becomes aware of a serious offense report it to the Service Police.160 While commanding officers play a key role in initially investigating most incidents, they are prohibited from investigating serious offenses such as murder or rape. These ‘‘Schedule 2’’ offenses must instead be reported to, and investigated by, the Service Police (or civil police depending on jurisdiction).161 Additionally, once an investigation is launched by the Service Police, commanding officers may no longer be involved. The Service Police, who are independent of the chain of command, will consult with the Service Prosecuting Authority (SPA) should they consider that there is evidence to support a charge, whether it be a criminal or service offense. In 1996, the UK military justice system was dramatically revised in anticipation of litigation before the European Court of Human Rights in Findlay v. United Kingdom, which subsequently found that the previous system violated the European Convention’s Article 6.1 requirement for ‘‘a fair and public hearing … by an independent and impartial tribunal.’’162 Today, prosecutions are the responsibility

156

UK Manual, supra note 60, para 16.36 (quoting ICC Statute, supra note 21, Article 28). Armed Forces Act, 2006, c. 52, § 343 (Eng.). 158 Armed Forces (Service Inquiries) Regulations, 2008, S.I. 2008, No. 1651, reg. 3. 159 Armed Forces Act, 2006, c. 52, explanatory notes, at 1–4 (Eng.). 160 Armed Forces Act, 2006, c. 52, §§ 113–15 (Eng.). 161 Manual of Service Law, Chap. 6, annex D–E (Ver. 1.0 2009). 162 Findlay v. United Kingdom, 24 Eur. Ct. H.R. 221, 223 (1997). The legislation effecting the revision was the Armed Forces Act of 1996. It has since been superseded by the Armed Forces Act of 2006. 157

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of the SPA, which resulted from consolidation of the prosecuting authorities of the three services in 2009. Cases are referred to the SPA by either the commanding officer or the Service Police. The Director of Service Prosecutions, a civilian, heads the SPA, which acts independently of the chain of command in making decisions on whether to direct a matter to court-martial and setting the charge that should be brought in light of the evidence.163 The Director reports to the Attorney General and appoints service prosecutors.164 Service prosecutors are seconded from the individual services, but are independent of the chain of command when performing their duties. Interestingly, decisions of the SPA regarding the decision to prosecute and the charge brought may be reviewed by a civilian court to determine compliance with the United Kingdom’s obligations under the European Convention. Victims and their families can request judicial review, a right which has led to such noteworthy litigation as Baha Mousa and Al-Sweady.165 A civilian Judge Advocate General serves as the senior magistrate for the military; subordinate magistrates are civilians as well. With the exception of the Royal Navy, civilian barristers or solicitors (paid for by the member or through legal aid) provide defense services, although an individual being tried abroad may ask to be represented by a uniformed attorney from another service (to ensure independence from the chain of command). A small number of uniformed service lawyers are assigned to provide legal advice to service members in matters not involving defense at trial, for instance on their options when they are ‘‘cautioned’’ (‘‘read their rights’’). When performing this duty, they are independent of the chain of command. In the Royal Navy, defendants have the option of civilian or military representation at trial. In the latter case, the attorney must not have been previously involved in the matter at hand. Importantly, senior service lawyers, such as the Director of Army Legal Services, would not be involved in the decision to prosecute or the actual defense or prosecution of an offense. Instead, they give advice to the chain of command.166 Outside the military justice system, investigative inquiries may be conducted pursuant to the Inquiries Act of 2005, by which any Cabinet member may direct a commission be formed when he or she believes that ‘‘particular events have caused, or are capable of causing, public concern, or … there is public concern that particular events may have occurred.’’167 Individuals appointed to serve on such

163

Armed Forces Act, 2006, c. 52, § 364 (Eng.). Id. Article 365. 165 In Re Al Skeini v. Secretary of State, (2008) 1 AC 153 [Baha Mousa Case] (Eng.); The Queen (on the application of Al-Sweady and Others) v. Secretary of State for the Defence [2009] EWHC 2387 (Admin) (October 2, 2009) (Eng.). For information on the Al- Sweady inquiry, see the inquiry webpage at http://www.alsweadyinquiry.org. 166 Multiple interviews by author of senior Royal Navy and Royal Air Force legal officers (August–September 2010). 167 Inquiries Act, 2005, c. 12, § 1 (Eng.). 164

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commissions must be impartial and, to the extent feasible, the proceedings must be public.168 In some cases, commissions are established after the military justice system is seen to fail. For instance, the Baha Mousa inquiry involves the death of an Iraqi citizen while in British custody. The incident was investigated by the Service Police and brought to trial before a military court. Only one conviction resulted (based on a confession), while there were multiple acquittals. However, then-Chief of the General Staff General Sir Richard Dannatt acknowledged that some Iraqis ‘‘were subjected to a conditioning process that was unlawful.’’169 Moreover, an internal Army investigation, the Aitken Report, also identified systemic failures in the handling of detainees.170 In May 2008, the Minister of Defence established a commission to inquire into the matter.171 The inquiry is presently ongoing.

12.3.4 United States As noted above, and as with the other States surveyed, the United States recognizes the responsibility of commanders for failure to investigate possible IHL violations and take appropriate action.172 Specifically, Department of Defense policy requires that: All reportable incidents committed by or against US personnel, enemy persons, or any other individual are reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action. (…) All reportable incidents are reported through command channels for ultimate transmission to appropriate US Agencies, allied governments, or other appropriate authorities. Once it has been determined that US persons are not involved in a reportable incident, an additional US investigation shall be continued only at the direction of the appropriate Combatant Commander. The on-scene commanders shall ensure that measures are taken to preserve evidence of reportable incidents pending transfer to US, allied, or other appropriate authorities.173

The policy defines a reportable incident as one in which a ‘‘possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations other than war that would constitute a violation

168

Id. §§ 9, 18. Press Statement, General Sir Richard Dannatt, Ministry of Defence (April 30, 2007) (cited in Joint Committee on Human Rights 2008, para 6). 170 British Army 2008, 10–16. 171 MOD Announces Baha Mousa Public Inquiry 2008. 172 See text accompanying notes 58–59. 173 Dep’t of Defense Directive (DoDD) 2311.01E, DoD Law of War Program, May 9, 2006, paras 4.4 and 4.5. 169

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State Practice

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of the law of war if it occurred during an armed conflict.’’174 The policy intentionally sets the standard low to ensure that the chain of command and other US officials are fully informed as to any incidents that might possibly amount to an IHL violation.175 In other words, this threshold for reporting possible violations represents a policy decision, not necessarily the US position on when reporting and investigation is required as a matter of IHL. The duty to report extends to ‘‘all military and US civilian employees, contractor personnel, and subcontractors assigned to or accompanying a DoD Component,’’ not just those exercising command functions.176 A commander who receives information concerning a possible violation must immediately report the matter through the chain of operational command and within his or her service channels (e.g. Air Force channels).177 The higher level command receiving such a report must request a formal investigation by military criminal investigators if the matter is not already under appropriate investigation and appears to involve criminal conduct, as well as report it to the Combatant Command (Central Command for Afghanistan and Iraq) and the service concerned.178 The Combatant Commander in turn reports the incident to the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, and the Secretary of the Army (who serves as the Department of Defense Executive Agent for such matters).179 It is not entirely clear whether a failure to report and investigate renders the commander or other responsible officer a principal or accessory to the war crime in question, or whether a separate offense has been committed.180 In a Marine Corps case arising out of the Haditha incident, the commander was charged with a dereliction of duty (Article 92 of the Uniform Code of Military Justice (UCMJ)) for failing to report possible war crimes. The case was eventually dismissed on, inter alia, the basis that a senior judge advocate advising the Convening Authority had participated in the earlier investigation of the incident and therefore exerted undue influence on the proceedings,181 but the Article 32 Report (see discussion below) found that the accused was derelict in his duty by failing to ‘‘thoroughly and accurately report and investigate a combat engagement that clearly needed 174 Id. para 3.2; see also Lloyd J. Austin III, US Dep’t of Defense, Chairman of the Joint Chiefs of Staff Instruction 5810.01C, Implementation of the DoD Law of War Program, para 5 (2007). 175 See Jackson 2010, at 95, 98. 176 Dep’t of Defense Directive (DoDD) 2311.01E, supra note 173, para 6.3. 177 Id. para 6.4. 178 Id. para 6.5. 179 Id. para 6.6. The Combatant Commander is also responsible for determining ‘‘the extent of investigation and manner in which a reportable incident not involving US or enemy persons will be investigated by US Forces and ensur[ing] such incidents are reported promptly to appropriate US Agencies, allied governments, or other appropriate authorities.’’ Id. para 5.11.7. 180 For a useful discussion of US practice regarding reporting and investigating possible IHL violations, see Jackson 2010. 181 See United States v. Chessani, 2009 N-M Ct. Crim. App. 200800299 U 1, 5–7.

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scrutiny, particularly in light of [the Marine Corps regulatory requirements to do so]. He failed to accurately report facts that he knew or should have known and inaccurately reported at least one critical fact that he specifically knew … to his higher headquarters.’’182 Unlike the other countries cited, the United States has no single system for conducting administrative or criminal investigations. Instead, the five services issue many of their own regulations and guidelines for service-specific investigations.183 However, since the various processes derive from a common body of law and military heritage, and because Department of Defense guidance governs each, the investigations closely resemble each other. As discussed, an allegation (reason to suspect) that a war crime has occurred obliges a commander to report the matter to law enforcement officials. Since allegations can be groundless, ill-motivated or purely speculative, this requirement cannot be absolute. A rule of reasonableness, commonly applied when interpreting IHL obligations, attaches, such that an investigation is required whenever a reasonable commander in the same or similar circumstances would, based on the information before him or her, suspect a violation. The Rules for Courts-Martial, which apply to all the US Armed Forces, provide a mechanism for assessing allegations for credibility. Pursuant to Rule 303, ‘‘[u]pon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses.’’184 The accompanying discussion explains: [t]he preliminary inquiry is usually informal. It may be an examination of the charges and an investigative report or other summary of expected evidence. In other cases a more extensive investigation may be necessary. Although the commander may conduct the investigation personally or with members of the command, in serious or complex cases the commander should consider whether to seek the assistance of law enforcement personnel in conducting any inquiry or further investigation. The inquiry should gather all reasonably available evidence bearing on guilt or innocence and any evidence relating to aggravation, extenuation, or mitigation.185

Based on the results of the inquiry, the commander determines what further investigation, if any, is necessary, and what military justice actions to take. Other tools short of a full criminal investigation for examining an incident include administrative inquiries and investigations. These proceedings are especially appropriate in cases where there may be no allegation of wrongdoing, but in which, because of the nature of the incident, review is advisable. A paradigmatic 182

Memorandum from Investigating Officer to Commander, US Marine Corps Forces, Central Command, Executive Summary of Pretrial Investigative Report in the Case of Lieutenant Colonel Jefferey R. Chessani, USMC (July, 10, 2007), in Jackson 2010, at 96. 183 The five services are: Air Force, Army, Coast Guard, Marine Corps, and Navy. 184 Joint Service Committee on Military Justice, Manual for Courts-Martial II-19 (2008) [hereinafter MCM]. 185 Id.

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example is the airstrike that causes unexpected civilian casualties despite being executed as planned. An inquiry or investigation would allow the facts to be captured in order to assess procedures and ensure that the attack complied with IHL. Air Force practices are illustrative of those employed throughout the US Armed Forces. Air Force commanders possess the authority to conduct or direct administrative inquiries or investigations into any incident regarding their command. This authority is inherent in their command position. Air Force policy requires that inquiries and investigations be conducted at a level of command that can ensure that the investigation is ‘‘complete, impartial and unbiased.’’186 In most cases, a single officer will conduct investigations or inquiries, although they may seek advice from specialists, such as those who operate a weapons system. In complicated matters, a board of officers may conduct investigations or inquiries. Inquiries serve to find facts in relatively simple or straightforward matters and usually result in a summarized report of findings. By contrast, investigations are used to examine complex matters. Investigative reports typically include relevant exhibits and sworn witness testimony.187 Although their results are sometimes made public, investigations may be ‘‘privileged’’ in cases involving sensitive matters, with release governed by domestic legislation such as the Freedom of Information and Privacy Acts.188 Witnesses must be informed of the nature of the investigation and those suspected of having possibly violated the law have to be advised of their right to either remain silent or insist on the presence of counsel while they testify.189 Commanders are required to consult with their servicing Staff Judge Advocate before directing an inquiry or investigation. A commander may not investigate matters in which he or she is directly involved, for doing so would violate Air Force policy that investigations be conducted at a level that ensures impartiality. ‘‘Involvement’’ does not imply that a commander is precluded from directing an examination of any possible violation committed by his or her unit. Rather, only those incidents where he or she personally took part, as in approving a strike in which the question of proportionality is at issue, preclude consideration. 186

Air Force Judge Advocate General’s School 2009. Procedures are governed by Air Force Instruction (AFI) 90-301, Inspector General Complaints Resolution, May 15, 2008, although the inherent authority of the commander, not the instruction, is the authority for the investigation. 187 Air Force Judge Advocate General’s School 2009, at 403. For instance, it may not be feasible to conduct a full investigation into every case involving collateral damage to civilian property during an attack, but a commander may nevertheless direct an inquiry to document facts and circumstances. Should the commander believe that something may have gone wrong during the attack, he or she might order an investigation. However, in the event criminal conduct is suspected (e.g. an intentional attack against civilian objects), referral to a military criminal investigative agency would be appropriate. 188 Freedom of Information Act, 5 U.S.C. § 552 (2006); Privacy Act, 5 U.S.C. § 552(a) (2006). 189 Air Force Instruction (AFI) 90-301, supra note 186, paras 2–45. The right to remain silent is set forth in Article 31 of the UCMJ for military personnel and the Fifth Amendment of the US Constitution for civilians. See UCMJ Article 31, 10 U.S.C. § 831 (2006); US Const. amend. V.

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Based on the inquiry or investigation, the commander may decide to take no action, direct further investigation, refer the case to law enforcement authorities, take administrative action such as issuing a letter of reprimand, impose nonjudicial punishment under the UCMJ (which can include punishments such as reduction in rank or forfeiture of pay),190 or ‘‘prefer’’ charges against an individual involved; that is, send the case forward for trial. A commander with authority to convene a court-martial in the case must remain ‘‘neutral and detached’’ and thus, is prohibited from acting in any investigative capacity.191 Such investigations by military officers have been conducted on numerous occasions in high profile cases during recent conflicts. Most notable in this regard were the Taguba Report into allegations of detainee abuse at Abu Ghraib Prison (Baghdad Central Confinement Facility) in Iraq and the Fay/Jones Report, which considered intelligence activities at the prison.192 When an incident reasonably appears to involve a war crime, the commander must notify military law enforcement personnel such as the Security Forces (Air Force military police) or, for serious matters, the Air Force Office of Special Investigation (AFOSI). The Security Forces are typically assigned to the commander’s unit. By contrast, the AFOSI is a separate specialized investigative agency that lies outside the chain of command. AFOSI detachments, consisting of military and civilian investigators, report through AFOSI channels to the commander of the organization, a senior Air Force officer. He reports to the Air Force Inspector General (a military officer), who in turn reports to the Secretary of the Air Force. Only the Secretary of the Air Force is empowered to direct the AFOSI to delay, suspend, or terminate an investigation.193 Once complete, the criminal investigation is transmitted to the commander, who determines how to proceed. The unit commander typically prefers charges against the individual accused. Preferral implies that the commander has grounds to believe an offense may have been committed, not that the charge has been proved beyond a reasonable doubt. The charges are then forwarded to the Special Courts-Martial Convening Authority, a more senior commander who can decide whether to direct resolution of the matter by means other than court martial, ‘‘refer’’ the charge to a Special Court-Martial (where punishment is capped at a low level), or convene an ‘‘Article 32 Investigation’’ to determine whether a General Court-Martial (which is empowered to adjudge all punishments) is

190

UCMJ Article 15, 10 U.S.C. § 815. Air Force Judge Advocate General’s School 2009, at 156. 192 Taguba 2004, para 3; Jones and Fay 2004. The investigations were conducted pursuant to Army Regulation 15-6, Procedures for Investigating Officers and Boards of Officers, October 2, 2006. 193 Air Force Policy Directive 71-1, Criminal Investigations and Counterintelligence, para 1.4.2 (2010); See also Air Force Instruction 71-101 (vol. 1), Criminal Investigations (1999). 191

12.3

State Practice

625

merited.194 Based on the results of the investigation, the Special Courts-Martial convening authority may decide the matter is not appropriate for trial, refer the case to a Special Court-Martial, or forward it to a more senior commander who exercises General Courts-Martial authority. The General Courts-Martial Convening Authority may direct alternative resolution or convene a Special or General Court-Martial.195 Commanders acting in their capacity as Courts-Martial Convening Authorities continue to exercise substantial influence over the matter following trial. In particular, they have the authority to approve or disapprove the findings and the sentence adjudged at trial. Although the Convening Authority may reject or decrease punishment, he or she may not increase it. The Judge Advocate General also exercises certain limited authority over post-trial procedures in particular categories of cases.196 All commanders are advised by a Staff Judge Advocate and his or her staff of military attorneys (judge advocates), who are usually assigned to the unit and report to the commander. Judge advocates may not act in matters in which they are directly involved; doing so would represent a ‘‘conflict of interest.’’ For instance, a judge advocate may not offer legal advice regarding investigation of an air strike causing collateral damage to civilians or civilian object if he or she was personally involved in the mission planning (assuming the mission planning advice is relevant to the issue at hand). In such a case, an uninvolved staff judge advocate will be assigned to provide legal advice to the commander. Prosecution will generally be handled by judge advocates who are members of Special Courts-Martial Convening Authority’s staff. They may be assisted by Circuit Trial Counsel, experienced litigators who, although formally assigned to a Circuit Trial Judiciary, report to the Convening Authority’s Staff Judge Advocate for the purposes of the case. The Convening Authority also selects the pool of officers from which the ‘‘jury’’ will be formed if the accused elects trial ‘‘by members.’’197 Military judges and defense counsel are assigned to the Judiciary and are fully independent of the chain of command. They report only through judge advocate channels, ultimately to the Judge Advocate General as the senior lawyer of the service.198 The Judge Advocate General is also charged with professional supervision and discipline of military trial and appellate military judges,

194 Maximum punishments for particular offenses are set forth in the individual punitive articles (offenses) set forth in MCM, supra note 184, pt. IV. Punishment may also be limited based on the rank of the accused. MCM, supra note 184, at RCM 1003. A Special Court-Martial may not adjudge a sentence that includes death, dishonourable discharge, dismissal of an officer, confinement in excess of one year, hard labor without confinement for more than three months, or certain forfeitures of pay. UCMJ, 10 U.S.C. § 819. 195 See generally Air Force Instruction 51-201, Administration of Military Justice (2007) [hereinafter AFI 51–201]. 196 See MCM, supra note 184, RCM 1101–07, 1201–05; AFI 51–201, supra note 195, Chap. 9. 197 AFI, 51–201, supra note 195, para 5.9. 198 Id. paras 5–1, 5–3.

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judge advocates and other lawyers who practice in military proceedings under the UCMJ.199 Convening authorities and commanders are specifically prohibited from censuring or admonishing counsel, military judges or members of a court-martial, and it is improper for any person subject to the UCMJ to interfere with courtmartial proceedings, findings, or sentencing.200 In addition to military mechanisms for investigating incidents, numerous other avenues of inquiry exist. Presidential Commissions are typically established by executive order to provide advice to the President. More common are Congressional Select Committees or Investigative Commissions, which may be established by joint decision of both houses of Congress or by one of the houses. Congressional Standing Committees may also hold hearings to consider issues within their competency.201 Individual agencies likewise possess the authority to investigate matters involving their personnel. For instance, the Department of Justice Inspector General has investigated the involvement of Federal Bureau of Investigation agents in detainee interrogations conducted in Guantanamo Bay, Iraq, and Afghanistan.202 Similarly, the Department’s Office of Professional Responsibility conducted an inquiry into legal advice regarding interrogations, finding professional misconduct on the part of two Office of Legal Counsel attorneys (although said findings were not adopted by the Associate Deputy Attorney General with authority over the matter).203

12.3.5 Conclusions as to State Practice The four case studies reveal certain common characteristics of investigations into battlefield incidents. Numerous cautionary caveats are in order. First, the practices are those of States that operate at the high end of investigative processes and procedures. Few States can marshal the resources necessary to conduct investigations at this level of complexity. Thus, while the legal bar may be lower than indicated in the following conclusions, it will surely be no higher. Second, certain of the practices described above result not from the mandates of IHL, but rather reflect conduct demanded by domestic legislation, judicial decisions unique to the State concerned, or non-IHL treaty obligations bearing only on States Party. Sensitive to this fact, the conclusions seek to articulate legal standards gleaned from practice, but divorced from State-specific domestic norms and international obligations. For instance, in those systems where the operational and

199

MCM, supra note 184, RCM 109. Id. RCM 104. 201 Magarrelli 2008, p. 11. 202 Dep’t of Justice, Office of the Inspector General 2009. 203 Dep’t of Justice, Office of the Deputy Attorney General (David Margolis) 2010; Dep’t of Justice, Office of the Inspector General 2009. 200

12.3

State Practice

627

military justice functions are separate, such separation is, as explained, almost entirely the consequence of domestic legislation and case law (such as Genereux, Findlay and Lane), some of which applies treaty norms applicable only to States that are Party thereto. When this is the case and there is meaningful contrary practice (as in the dual role of the service Judge Advocate Generals in the United States), no corresponding requirement has been included. Third, it must be understood that the conclusions set forth below are not meant to represent ‘‘best practice.’’ As an example, while there is no requirement for making known the results of an investigation, transparency, particularly among an affected population, generally enhances counterinsurgency operations.204 The Article 32 Investigating Officer in the Haditha case convincingly made this point when he noted that ‘‘[t]hese actions display not only negligence with regard to those duties reasonably expected of a Battalion Commander in combat; they also belie a wilful and callous disregard for the basic [tenets] of counterinsurgency operations and the need for popular support and legitimacy.’’205 Fourth, practices based on policy choice pervade each of the case studies. For instance, all four States have military criminal investigative agencies that lie outside the chain of command investigate serious incidents, and the United States imposes extensive reporting requirements up the chain of command. It is difficult to pinpoint any rule of IHL requiring these practices. Similarly, while no requirement for investigations outside military channels can be found in IHL proper, each of the States surveyed provide for extra-military inquiries, thereby demonstrating a commitment to the principle of civilian control over the military in democracies. As should be clear, a practice that is not technically required by IHL may nonetheless represent a wise policy decision. But it is not the law, and thus is excluded from the obligations appearing below. Based on the preceding survey of law and practice, the following conclusions are offered: 1. The obligation to report applies to all individuals who exercise command authority over military forces. That a subordinate commander or other responsible officer bears this responsibility does not relieve more senior officers of the duty. Effective compliance with the requirement necessitates policies extending it to any member of the armed forces with knowledge of a possible IHL violation. 2. The obligation to investigate likewise encompasses the entire chain of command. The duty may be satisfied by investigations at any level of command, but only so long as the investigation in question is effective in terms of uncovering relevant facts and circumstances that will permit appropriate disciplinary action to be taken.

204

See generally Dep’t of the Army Headquarters & Marine Corps Combat Development Command Headquarters 2006. 205 Jackson 2010, at 98 (citing Chessani Article 32 Investigation Officer Report).

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3. Every allegation of a war crime need not be investigated. The requirement to investigate applies only where such allegations appear credible.206 On the other hand, an investigation must be launched even in the absence of an allegation when credible reason to suspect a violation exists. 4. There is no requirement to investigate particular categories of incidents, such as those involving civilian casualties or damage to civilian property. Such a requirement would be impractical during armed conflict. Only incidents based on a credible allegation of a war crime or other reason to suspect a violation necessitate investigation. 5. Investigations may be administrative in nature. In particular, an administrative fact-finding investigation is appropriate where it is necessary to assess existing procedures and practices, such as current targeting guidelines, rules of engagement and other policy or operational practices, or to ascertain preliminary information regarding an event, such as the exact time and location of a particular incident, the identity of the unit involved and so forth.207 That an incident may involve a violation of IHL does not preclude an administrative investigation. Typically, States employ a combination of field investigations, administrative investigations of varying degrees of formality, criminal investigations and trials, and governmental oversight mechanisms to meet the requirement to investigate. 6. It is appropriate to conduct administrative investigations, including immediate in-the-field examination of the facts and circumstances surrounding an event, to assess the need for further investigation, whether administrative or criminal in nature. 7. Possible war crimes must be promptly investigated. In particular, an initial inquiry must be conducted immediately whenever a commander or other responsible officer reasonably suspects that a war crime may have taken place. The realities of the battlefield, however, will often influence the practicable pace of the investigation. 8. The requisite depth of the investigation and its procedural robustness depend in part on the complexity of the matter and its seriousness. They also depend on the attendant circumstances, such as on-going hostilities in the area where the incident occurred, the location of witnesses, and so forth. In other words, the effectiveness of an investigation must always be judged contextually. 9. Impartiality and independence are questions of fact. The issue is not whether an investigator falls within the chain of command, but whether he or she is in fact able to act without undue influence when making findings as to possible violations of IHL. Any attempt to interfere with the investigator’s actions in order to affect the findings is improper. The safeguard for independence and 206

See id. at 99. Such information may not be self-evident in a situation of intense fighting that involves the participation of various units moving in and out of the combat zone. While some military activities, such as air strikes, may be documented with video footage, manoeuvres of ground forces typically lack such documentation. 207

12.3

10.

11.

12.

13.

14.

15. 16.

208

State Practice

629

impartiality lies primarily in prohibiting wrongful interference, not in mandating, for instance, a particular command or organizational relationship. There is no prohibition on commanders investigating possible violations by members of their unit. On the contrary, unit commanders are primarily responsible for conducting a prompt initial inquiry into an incident. However, commanders and other responsible officers may not conduct an investigation into any incident in which they have been personally involved. Such matters must be referred to a higher command or to law enforcement authorities.208 There is no legal requirement that individuals investigating incidents be of a particular rank or serve outside the unit involved in the incident. Military police serving within the unit involved in an incident may conduct criminal investigations. However, as with commanders, they must be impartial. There is no legal requirement that those conducting an investigation be trained in investigative techniques or practices. In many cases, investigations are optimally conducted by officers with an operational background, as they may best understand the context in which the incident occurred and the manner of its execution. The investigative safeguards typically applicable in criminal and judicial proceedings do not apply in administrative investigations, except as a matter of policy. The differing purposes of the two categories of investigations— prosecution and fact-finding respectively—undergird the distinction. Factfinding may necessitate expeditious procedures that ensure full cooperation with the investigation, but which run counter to such judicial limitations as the prohibition on compelling testimony from a suspect.209 However, in virtually all of the systems evaluated, at trial such administrative practices will bear on the use of any information obtained. Investigations need not be conducted publically or their results released. Nor is there any requirement that victims or their families participate or otherwise be informed of investigative results. To the extent this is done, the practice represents a policy choice.210 There is no obligation to conduct investigations outside military channels into possible IHL violations. As the US case study demonstrates, no absolute prohibition exists on military lawyers providing both operational and investigative or disciplinary advice; the restrictions in the other countries examined derive from domestic law and

This requirement ensures the impartiality of the officer directing the investigation and preserves the independence of those conducting it. 209 For example, it may be vital in the investigation of an attack involving civilian casualties to quickly identify the causes of the incident so as to preclude repetition. 210 In the context of armed conflict, such a requirement would make little sense. Sensitive intelligence sources might be compromised, operational tactics and military strategy could become public, witnesses may be placed at risk due to their cooperation, classified weapons data could be revealed, etc.

630

17.

18. 19.

20.

21.

22.

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decisions. Nevertheless, it is improper for a lawyer to provide the legal advice regarding an incident in which he or she was personally involved.211 When an investigation reveals clear and reliable evidence of a war crime, disciplinary action must be taken or the case has to be referred to criminal investigative agencies. Administrative and criminal investigations may take place simultaneously into the same incident, for they may serve different purposes. States must take action to punish those who have violated IHL. Either appropriate disciplinary action (including prosecution) within the military justice system or prosecution by the civilian courts satisfies the requirement. Criminal investigations and judicial proceedings involving possible war crimes are subject to the same safeguards for an accused, and for the overall integrity of the investigative and judicial system, as would apply in peacetime. US practice suggests that military lawyers who render advice on whether to prosecute or act as prosecutors need not serve outside the operational chain of command; restrictions on such service in other countries result from domestic limitations, not IHL. However, lawyers providing defense services to members of the armed forces accused of a violation, as well as judges in military trials, must be independent of the chain of command. Senior military lawyers, including an armed force’s most senior lawyer, may, as in the US case, exercise professional and military supervision over both lawyers providing operational legal advice and those responsible serving within the military justice system. Domestic norms, not IHL, drive the separation of these functions in other States. However, senior military lawyers may not interfere with either investigations or criminal trials in any manner that would detract from the impartiality of such proceedings, nor may they act with regard to any matter in which they are personally involved.

12.4 Concluding Thoughts The lex scripta regarding investigations into violations of international law committed during an armed conflict is markedly exiguous. Although it is incontrovertible, as both a matter of treaty and customary law, that an investigation must be conducted whenever a war crime may have occurred, and that prosecution (or other appropriate disciplinary action) is mandated in the event a violation is found, little guidance exists in the law proper on the nature of such investigations.

211

For instance, a lawyer who provided legal advice on whether a particular target represented a military objective may not subsequently serve as a legal adviser for an investigation or prosecution involving the legality of a strike against that target. The definition of military objective is at AP I, supra note 22, Article 52.2.

12.4

Concluding Thoughts

631

Section 12.1 of this Chapter suggested standards applicable to IHL investigations that were deduced from the relevant provisions of the 1949 Geneva Conventions and the 1977 Additional Protocol I. They pertain equally to the customary IHL governing investigations, as well as both international and non-international armed conflict. Human rights law also applies in situations of armed conflict, although the extent of application remains somewhat unsettled. As explained in Sect. 12.2 above, four universal principles govern human rights investigations: independence, effectiveness, promptness, and impartiality. These principles also determine the adequacy of investigations into possible war crimes. Since IHL is the lex specialis in armed conflict, compliance of human rights investigations with the four principles is determined by reference to IHL. It was accordingly necessary to examine State practice in Sect. 12.3 to ascertain how States actually interpret and implement the obligation to conduct independent, effective, prompt, and impartial IHL investigations. The distinction between practices derived from IHL and those that merely reflect policy choice or the influence of domestic norms, including treaty obligations borne by particular States, proved decisive in several of the conclusions drawn. Importantly, the criteria set forth in Sect. 12.3 are intended to reflect likely lex lata, not necessarily best practice. At the same time, given the normative maturity of the States examined, as well as their relative wealth of resources to conduct the investigations, the conclusions represent the outer limits of the legal regime governing investigations. In light of the current controversy over investigations during armed conflict, two points merit particular emphasis. First, investigations are required only if there is reasonable suspicion or a credible allegation of a war crime having been committed; not every allegation or possibility of violation necessitates investigation. Second, IHL does not require an investigation that exhausts all possible investigatory options. The sole requirement is one that meets the four universal principles. For example, while it may enhance independence for the person with authority to charge a war crime to operate outside the chain of command, such a relationship is not legally required so long as he or she is not subjected to improper pressures when conducting their activities. Similarly, while a trained criminal investigator may be better equipped to conduct a thorough investigation in some cases than another military officer, this fact does not render the latter’s investigation ineffective as such. Any assessment of whether an investigation has been properly conducted must also take cognizance of the relationship between human rights law and IHL. Human rights-specific procedures such as victim involvement or the performance of autopsies have no normative relevance to investigations of IHL violations. They may be practical measures that in certain specific cases could enhance the quality of an investigation, but do not represent legal criteria. Moreover, it must be remembered that, as a matter of law, practices that may be legally mandated during a human rights investigation occurring in peacetime are supplanted by IHL standards during armed conflict. And, of course, although particular human rights treaty law, and its authoritative interpretation by treaty bodies, may determine how

632

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a treaty provision is to be applied by States Party in armed conflict, such pronouncements have no direct bearing on the obligations of non-Party States. Those who conduct ‘‘investigations into investigations’’ bear a further responsibility for discriminating lex lata from lex ferenda. Indeed, assertions of norms that in fact amount to lex ferenda may prove counterproductive to the goal of performing meaningful investigations. For instance, some observers have criticized investigations by military personnel as nothing more than looking into one’s own possible misconduct.212 While impartiality and independence are investigatory requirements, so too is effectiveness. An investigator who does not understand, for example, weapons options, fuzing, guidance systems, angle of attack, optimal release altitudes, command and control relationships, communications capabilities, tactical options, available intelligence options, enemy practices, pattern of life analysis, collateral damage estimate methodology, human factors in a combat environment, and so forth, will struggle to effectively scrutinize an air strike. Not surprisingly then, and as Sect. 12.3 above demonstrates, it is common for operational personnel, including commanders, to examine military activities. Similar care must be taken to avoid positing impractical, or even dangerous, standards. How, for example, does an investigator interview witnesses to an air attack executed beyond the front lines? How are the victims’ families notified of an investigation’s findings when they are in enemy held territory and have no access to modern communications such as the Internet? How does one interview witnesses in the field, when they will be killed for cooperating once the investigators depart? Who will conduct a prompt investigation into a possible war crime in the midst of on-going high-intensity hostilities if not members of the unit itself? The point is not that efforts like these are always poorly suited to investigations. Rather, they are cited to illustrate that the baseline norms for investigations during armed conflict are necessarily different than those that could be complied with easily in other situations. It is hoped that those charged with appraising investigations conducted during an armed conflict will exhibit both sensitivity to the nature of the conflict in question and fidelity to the governing law as it is, not as they might have it to be. Failure to do so will only undercut respect for international humanitarian law, as well as the human rights norms that incorporate it, on the part of States conducting investigations.

Abbreviations ADF

Australian Defence Force

ADFIS

Australian Defence Force Investigative Service

212

See Israel’s Report to the UN Misstates the Truth 2010.

12.4

Concluding Thoughts

AFOSI

Air Force Office of Special Investigation

CFNIS

Canadian Forces National Investigation Service

CFPM

Canadian Forces Provost Marshall

CMAC

Court-Martial Appeal Court

CMPS

Canadian Military Prosecution Service

DMP

Director of Military Prosecutions

ICCPR

International Covenant on Civil and Political Rights

ICRC

International Committee of the Red Cross

IDF

Israel Defence Force

IED

Improvised explosive device

IGADF

Inspector General of the Australian Defence Force

IHL

International humanitarian law

JAG

Judge Advocate General

LOAC

Law of armed conflict

MPCC

Military Police Complaints Commission

NATO

North Atlantic Treaty Organisation

QA

Quick Assessment

SPA

Service Prosecuting Authority

US

United States of America

UCMJ

Uniform Code of Military Justice

UNOSOM

United Nations Mission in Somalia

633

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Biographical Sketch

Professor Michael N. Schmitt is Chairman of the International Law Department at the United States Naval War College. He was previously the Chair of Public International Law at Durham University in the United Kingdom and Dean of the George C. Marshall European Center for Security Studies in Germany. Before joining the Marshall Center, Professor Schmitt served 20 years in the United States Air Force as a judge advocate specializing in operational and international law. From 2007 through 2008, he occupied the Charles H. Stockton Visiting Chair of International Law at the Naval War College. He has been the Sir Ninian Stephen Visiting Scholar at Melbourne University and an invited Visiting Scholar at Australian National University and Yale Law School. The General Editor of the Yearbook of International Humanitarian Law, Professor Schmitt serves on many boards of institutions, learned and professional societies, and publications dealing with international humanitarian law. He has also been active in multiple international expert working groups, including those on the Manual on the International Law of Air and Missile Warfare (Harvard Program on Conflict Research), Direct Participation by Civilians in Hostilities (ICRC), Characterization of Conflict (Chatham House), and, as Project Director, the Manual on the International Law Applicable to Cyber War (NATO Cooperative Cyber Defence Centre of Excellence). Professor Schmitt’s works on law and military affairs have been published in Belgium, Chile, Germany, Israel, Italy, Norway, Peru, Sweden, Switzerland, the Netherlands, the United Kingdom and the United States. He has delivered the Sir Ninian Stephen Lecture at Melbourne University, the Hilaire McCoubrey Lecture at Hull University and the Waldemar Solf Lecture at the US Army’s Judge Advocate General’s Legal Center and School. His academic degrees include a JD (University of Texas), LL.M (Yale University), MA (Naval War College), and MA (Texas State University). In 2011, he was awarded a Doctor of Letters degree from Durham University in recognition of his research and publication of ‘‘high distinction, constituting a substantial and original contribution to scholarship in the field.’’

M. N. Schmitt, Essays on Law and War at the Fault Lines, DOI: 10.1007/978-90-6704-740-1, Ó T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2012

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