IHL_PRIMER.pdf

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INTERNATIONAL HUMNANITARIAN LAW PRIMER Professor W. Chad Austin

Major Amer Mahmud

I. INTRODUCTION

This chapter of the course aims to introduce Air Force Officers to selected topics of the Law of Armed Conflict (LOAC).1 You are in the profession of arms, and consequently you must have sufficient knowledge of the laws that govern conflicts. A mistake with the application of this law can make the difference between a war hero and a war criminal. Therefore, the overarching goal of this chapter is to improve students’ understanding of LOAC by sampling, discussing, and analyzing selected topics.

The world generally has had some sort of conflict occurring for as long as history can be

told, and whether due to cultural, religious, or territorial reasons, most would agree that “war is hell.” No doubt most would agree that it should be avoided, and accordingly there have been many attempts to restrict the use of force by states. After WWI the League of Nations (LON) was created by various states to help restrict the use of force between states. History shows that the LON was an abysmal failure, however. One reason for its failure was the fact that some of the most powerful nations of the time either never joined or withdrew from the regime (i.e., the U.S. never joined, and Germany and Japan later withdrew). And its failure is further demonstrated by the eruption of WW II.

The maintenance of peace after World War II was one of the main reasons for the

creation of the United Nations (UN), the successor to the LON. The UN is different from the LON in that there is universal support—193 states have joined, including all the major powers.2 Under Article 2(4) of the Charter of the United Nations, all member states are required 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 UN. Despite this noble limitation on the use of force to prevent armed conflicts, the Charter does allow for the use of force in very specific circumstances; i.e., in self-defense if a state is attacked, or if the Security Council authorizes the use of force pursuant to a resolution.3 The balance of these two provisions implicates two very specialized areas of international law, which has divided the law of warfare into two categories: 1) laws governing whether a state may resort to the use of force (jus ad bellum) and 2) laws governing how a state must conduct itself after the war has begun (jus in bello). In this chapter we will explore the fundamentals of these specialized branches of the law, and it’s important to note that this distinction is kept to preserve the idea that no matter whether a state resorts to force lawfully or unlawfully (jus ad bellum), all belligerents must abide by certain norms during the conflict (jus in bello).4

1 The term “Law of Armed Conflict” is interchangable with International Humanitarian Law (IHL), and the Law of War. 2 http://www.un.org/en/aboutun/index.shtml (last visited 1 June 2013). 3 U.N. Charter, Art 51. 4 Sean D. Murphy, Principles of Inaternational law 439 (2010).

Chapter 13: The Law of Armed Conflict: Fundamentals for Air Force Officers

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II. DEFINING FORCE

As previously mentioned, Art 2(4) of the Charter generally prohibits the use of force in international relations to essentially avoid a major conflict like World War III, but the term force unsurprisingly is not necessarily clear under international law. Even though the word “force” is mentioned, it is not defined anywhere in the Charter. Consequently, as with many issues in international law, other sources of international law must be examined to fill in the gaps.5 In determining what “force” means, some scholars assert that, absent a Security Council resolution or in self-defense, the term “…required to refrain in their international relations from the threat or use of force” in Article 2(4) prohibits ALL uses of force. By contrast, some scholars have argued that the phrase “against the territorial integrity and political independence of any state” in Art 2(4) limits the prohibition to uses of force that are above a threshold at which the territorial integrity or political independence of a state is impugned. Under this latter interpretation, the use of force directed at altering territorial or political structures (i.e., effort to annex territory) is prohibited, but uses of force not so directed (e.g., to rescue nationals) is permissible.6 What actually constitutes the use of force is obviously debatable, and the General Assembly has weighed in on the debate.7 It issued a resolution in 1974, which is widely used as interpretive guidance on what constitutes force, and it provides numerous situations that would violate Art 2(4) of the Charter. Some of the important examples in the Resolution include:

1. Invasion by one state of another; 2. Bombardment by one state of another; 3. Blockade by one state of another’s coasts or ports; 4. Allowing a state to use another state’s territory to attack a third state, and 5. Sending armed bands or groups from one state into another to carry out acts of armed force of such gravity as to constitute an armed attack.8

The Resolution provides other examples also that are not provided here, but it’s important

to note that the acts enumerated in the Resolution are not exhaustive by any means. In fact, despite this Resolution to help clarify the issue, the UN Security Council has the ultimate power to determine what acts constitute aggression under the provisions of the Charter.9 The issue of what is considered force in violation of international law can be complicated due to the political nature of international law, and the law in this area will continue to emerge especially due to advancements in technology (i.e., cyber-attacks). Nevertheless, the International Court of Justice (ICJ) has provided an illustration of when the use of force by a state is in violation of the UN Charter.10 5 The sources of international law include treaties, customary international law, general principles of law, judicial decions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. For more information, see Art 38 of the statute of the International Court of Justice. 6 Murphy, supra note 4, at 440. 7 Article 5 of the Rome Statute, which established the International Criminal Court (ICC), also provides a definition of aggresssion, but the ICC currently has no power to assert jurisidiciton over this violation of international law. 8 UN General Assembly Definition of Aggression, G.A. Res. 3314 (Dec. 14, 1974). 9 U.N. Charter, Art 39. 10 The ICJ was created as the judicial organ of the United Nations, and it sits in the Hague, Netherlands.


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CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO11 (Democratic Republic of the Congo v. Uganda)

INTERNATIONAL COURT OF JUSTICE (Dec. 19, 2005)

On 23 June 1999, the Democratic Republic of the Congo (hereinafter “the DRC”) filed in the

Registry of the Court an Application instituting proceedings against the Republic of Uganda (hereinafter “Uganda”) in respect of a dispute concerning “acts of armed aggression perpetrated by Uganda on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity”.

The prohibition against the use of force is a cornerstone of the United Nations Charter. Article 2, paragraph 4, of the Charter requires that: 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.

The Court recalls that on 9 April 1999 the Security Council determined the conflict to constitute a threat to peace, security and stability in the region. In demanding an end to hostilities and a political solution to the conflict, the Security Council deplored the continued fighting and presence of foreign forces in the DRC and called for the States concerned “to bring to an end the presence of these uninvited forces” (United Nations doc. S/RES/1234, 9 April 1999).

The evidence has shown that the UPDF [Uganda Peoples’ Defence Forces] traversed vast areas of the DRC, violating the sovereignty of that country. It engaged in military operations in a multitude of locations, including Bunia, Kisangani, Gbadolite and Ituri, and many others. These were grave violations of Article 2, paragraph 4, of the Charter.

The Court notes that the Security Council, on 16 June 2000, expressed “outrage at renewed fighting between Ugandan and Rwandan forces in Kisangani”, and condemned it as a ”violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo” (United Nations doc. S/RES/1304 (2000)).

The Court further observes that Uganda—as is clear from the evidence given by General Kazini and General Kavuma … [to a fact-finding commission]—decided in early August 1998 to launch an offensive together with various factions which sought to overthrow the Government of the DRC. The DRC has in particular claimed that, from 2 September 1998 onwards, Uganda both created and controlled the MLC [Congo Liberation Movement] rebel group led by Mr. Bemba. The DRC also points to the … fact that … the MLC and UPDF are treated as a single unit.

For its part, Uganda acknowledges that it assisted the MLC … to help Uganda achieve its objectives of driving out the Sudanese and Chadian troops from the DRC, and of taking over the airfields between Gbadolite [Congo] and the Ugandan border; Uganda asserts that it did not go beyond this.

Thus the Declaration on Principles of International Law Concerning Friendly Relations and Co-

operation Among States in accordance with the Charter of the United Nations (hereinafter “the Declaration on Friendly Relations”) 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 paragraph involve a threat or use of force (General Assembly resolution 2625 11 http://www.tjsl.edu/slomansonb/9.2_ArmedActCongo.pdf (last visited 1 June 2013).


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(XXV), 24 October 1970). The Declaration further provides that, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State. These provisions are declaratory of customary international law.

The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war.

In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State.” The Court notes that in the present case it has been presented with probative evidence as to military intervention. The Court further affirms that acts which breach the principle of nonintervention “will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.”

In relation to the first of the DRC’s final submissions, the Court accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.

NOTES, COMMENTS, AND QUESTIONS Is the launching of a cyber-attack by China to disable networks in the U.S. an act of aggression sufficient to violate international law? Do you think economic sanctions imposed by one state on another considered force within the meaning of article 2(4) of the Charter?

The above case illustrates a violation of Article 2(4) of the UN Charter, but it would be unrealistic in the world we live in for the use of force to be prohibited under any and all circumstances. The drafters of the Charter recognized this, and therefore incorporated two exceptions to the prohibition on the use of force, which are universally accepted exceptions to the prohibition on the use of force in Art 2(4). These exceptions are force used in self-defense in response to an armed attack and force used under the auspices of a Security Council Resolution. But as we’ll see, these exceptions carved out under the UN Charter are not adequate according to some states as years have passed since the inception of the Charter, and other principles have emerged that states invoke to use force against other states. These principles will be explored below. A. SELF-DEFENSE

Art 51 of the UN Charter provides that “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 UN, until the Security Council has taken measures necessary to maintain international peace and security.” It’s pretty clear under general principles of law that if someone punches you, you can punch them back in self-defense to quell the threat. This basic concept under


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international law is similar, and in fact, this basic idea of self-defense has been customary international law long before the emergence of the United Nations. A classic example of the exercise of a state’s inherent right to self-defense was the U.S. invasion of Afghanistan in 2001 in response to Al Qaeda’s attack on 11 September 2001; the U.S. invasion was to prevent future attacks vice simply retaliate for 9/11. But what if the individuals that decide to invoke the self-defense doctrine simply get it wrong based on the intelligence? U.S. courts have actually wrestled with this issue, which you must remember can offer differing results than international tribunals.

EL-SHIFA PHARM. INSDUS. CO. V. UNITED STATES

United States Court of Appeals for the District of Columbia Circuit 607 F.3d 836 (June 8, 2010)

On August 7, 1998, the terrorist network headed by Osama bin Laden bombed United States

embassies in Kenya and Tanzania. Hundreds were killed and thousands injured. On August 20, the United States responded by launching nearly simultaneous missile strikes against two targets: a terrorist training camp in Afghanistan and a factory in Sudan believed to be "associated with the bin Ladin network" and "involved in the production of materials for chemical weapons." President William J. Clinton, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 PUB. PAPERS 1460, 1461 (Aug. 20, 1998).

President Clinton addressed the American people, explaining "the objective of this action and

why it was necessary." "Our target was terror; our mission was clear: to strike at the network of radical groups affiliated with and funded by Usama bin Ladin, perhaps the preeminent organizer and financier of international terrorism in the world today." "The risks from inaction, to America and the world, would be far greater than action," the President proclaimed, "for that would embolden our enemies, leaving their ability and their willingness to strike us intact."

In a letter to the Congress "consistent with the War Powers Resolution," the President reported

that the strikes "were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities" and "were intended to prevent and deter additional attacks by a clearly identified terrorist threat." President William J. Clinton, Letter to Congressional Leaders Reporting on Military Action against Terrorist Sites in Afghanistan and Sudan, 2 PUB. PAPERS 1464, 1464 (Aug. 21, 1998). The following day, in a radio address to the nation, President Clinton explained his decision to take military action, stating, "Our goals were to disrupt Bin Ladin's terrorist network and destroy elements of its infrastructure in Afghanistan and Sudan. And our goal was to destroy, in Sudan, the factory with which Bin Ladin's network is associated, which was producing an ingredient essential for nerve gas." President William J. Clinton, The President's Radio Address, 2 PUB. PAPERS 1464, 1465 (Aug. 22, 1998). Citing "compelling evidence that the Bin Ladin network was poised to strike at us again" and was seeking to acquire chemical weapons, the President declared that "we simply could not stand idly by."

The plaintiffs in this case are the El-Shifa Pharmaceutical Industries Company (El-Shifa), the

owner of the plant, and Salah El Din Ahmed Mohammed Idris (Idris), the principal owner of El-Shifa. They allege that striking the plant was a mistake, that it "was not a chemical weapons facility, was not connected to Bin Laden or to terrorism, and was not otherwise a danger to public health and safety." Instead, the plaintiffs contend, the plant was Sudan's largest manufacturer of medicinal products, responsible for producing over half the pharmaceuticals used in Sudan. Because the case comes to us on appeal from a dismissal for lack of subject-matter jurisdiction, we take the plaintiffs' allegations as true.


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The plaintiffs brought this action in the United States District Court for the District of Columbia after the CIA denied their requests for compensation for the plant's destruction and for a retraction of the allegations that the plaintiffs were involved with terrorism. Their complaint included a claim under the law of nations seeking a judgment that the United States violated international law by failing to compensate them for the unjustified destruction of their property.

The district court granted the government's motion to dismiss the complaint for lack of subject-

matter jurisdiction, concluding that sovereign immunity barred all of the plaintiffs' claims. The court also noted that the complaint "likely present[ed] a nonjusticiable political question." The plaintiffs appealed, challenging only the dismissal of their claims alleging a violation of the law of nations…. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine.

It is emphatically the province and duty of the judicial department to say what the law is,"

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803), but some "[q]questions, in their nature political," are beyond the power of the courts to resolve. The political question doctrine is "essentially a function of the separation of powers," Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), and "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." See also United States v. Munoz-Flores, 495 U.S. 385 (1990) (explaining that the "doctrine is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government").

In the seminal case of Baker v. Carr, the Supreme Court explained that a claim presents a

political question if it involves: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. "To find a political question, we need only conclude that one [of these] factor[s] is present, not all."

Disputes involving foreign relations, such as the one before us, are "quintessential sources of

political questions." Because these cases raise issues that "frequently turn on standards that defy judicial application" or "involve the exercise of a discretion demonstrably committed to the executive or legislature," Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention, yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Even in the context of military action, the courts may sometimes have a role.

We have consistently held, however, that courts are not a forum for reconsidering the wisdom of

discretionary decisions made by the political branches in the realm of foreign policy or national security. In this vein, we have distinguished between claims requiring us to decide whether taking military action was "wise" and claims "[p]resenting purely legal issues" such as whether the government had legal authority to act. Accordingly, we have declined to adjudicate claims seeking only a determination whether the alleged conduct should have occurred.

For example, in reviewing the Secretary of State's designation of a group as a "foreign terrorist

organization" under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189 (2006), we may decide whether the government has followed the proper procedures, whether the organization is foreign,


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and whether it has engaged in terrorist activity, but we may not determine whether the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States. The conclusion that the strategic choices directing the nation's foreign affairs are constitutionally committed to the political branches reflects the institutional limitations of the judiciary and the lack of manageable standards to channel any judicial inquiry into these matters.

The complex, subtle, and professional decisions as to the . . . control of a military force are

essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is not the role of judges to second-guess, with the benefit of hindsight, another branch's determination that the interests of the United States call for military action.

The case at hand involves the decision to launch a military strike abroad. Conducting the

"discriminating analysis of the particular question posed" by the claim the plaintiff presses on appeal, we conclude that it raises non-justiciable political questions. The law-of-nations claim asks the court to decide whether the United States' attack on the plant was "mistaken and not justified." If the political question doctrine means anything in the arena of foreign relations, it means the courts cannot assess the merits of the President's decision to launch an attack on a foreign target, and the plaintiffs ask us to do just that. Therefore, we affirm the district court's dismissal of the plaintiffs' law-of-nations…claims.

NOTES, COMMENTS, AND QUESTIONS

Did Sudan actually conduct these attacks on the embassies or was it another group operating within Sudan? Should the group’s activities be attributed to the Sudan? Do you agree with the court’s decision? Was the U.S. response necessary and proportionate (two key limitations on self-defense)? Does this decision mean that the president can order a strike on anyone or anything in the name of national security without judicial scrutiny of the facts behind the decision to do so?

State action in response to an armed attack from another state in self-defense is undeniably customary international law, but one can see the issues that arise if the response to an attack is fueled by bad intelligence or if the initial attack is conducted by armed groups that are not associated with state governments. For instance, if an armed group blows up a hotel in India and India later determines that the group is operating out of Pakistan, is India entitled to enter Pakistan under international law to eradicate the group responsible for blowing up the hotel in India? There is an emerging concept under international law that would allow victim states to take action against such groups, sometimes referred to as extraterritorial law enforcement (ELE). The advocates of ELE basically would allow for a victim state to invade another state for the purpose of eradicating the specific group that was responsible for the attack, and then withdraw immediately if the “host” state fails to prevent its territory from being used to launch attacks, and if it’s unwilling or incapable of policing its own territory. However, apart from host state consent, ELE has probably not achieved a level of acceptance by the international community to categorize it as a justifiable use of force. What do you think—should it be a lawful justification for the use of force?


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Another challenging issue that arises in the analysis of jus ad bellum is when a state knows it’s going to be attacked, but doesn’t know when exactly? For instance, can a state attack another state before it is actually attacked to stop an impending armed attack, according to Article 51? This is an issue that Israel is currently wrestling with as it monitors the nuclear development of its thorny neighbor to the East, which has declared it wants to wipe Israel off the map. The Caroline Affair of 1837 sets much of the groundwork for international law regarding the use of anticipatory (sometime also referred to as preemptive) force in self-defense.12 1) THE CAROLINE AFFAIR/ANTICIPATORY SELF-DEFENSE

In 1837, settlers in Canada were upset with British policies and rebelled against the

government. The U.S. adopted a neutrality policy against the rebellion. Despite this, there was still a large number of Americans who sympathized with the Canadian rebels. These American sympathizers provided the rebels with men and supplies, and transported them by a steamboat named the Caroline. In response, a British force invaded U.S. territory at night and set the Caroline on fire, which led to its demise as it went over Niagara Falls. The Americans suffered casualties. The British government justified their attack on the Caroline as one of self-defense. The two governments sent diplomats to resolve this dispute. Lord Ashburton (Britain) and Daniel Webster (United States) negotiated via letter, and the end result was the Webster-Ashburton Treaty of 1842.

In a letter to Ashburton, Webster argued that using preemptive force in self-defense is only acceptable if the government could show a “necessity of self–defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation.” These words led to the development of the Caroline Test, which is widely accepted as customary international law to determine whether a preemptive attack in self-defense is justified. The Caroline Test has two main limitations, however: 1) NECESSITY: The state must demonstrate that the attack is necessary and that all peaceful alternatives have been exhausted and 2) PROPORTIONALITY: The force used must be proportional to the threat faced by the state.


Which view is better, does an armed attack have to occur first before the resort to self-defense, or do you subscribe to the view of anticipatory self-defense, as outlined in the Caroline Affair? If you prefer the Caroline Test, doesn’t that replace a clear standard outlined in Article 51 of the Charter with a vague, self-serving one, and open a loophole that essentially swallows the rule? Should Israel attack Iran to thwart an impending nuclear attack? Or, should Iran attack Israel first to thwart an “impending” attack? Does Iran have a philosophical right to develop nuclear technology?

12 http://avalon.law.yale.edu/19th_century/br-1842d.asp (last visited 1 June 2013).


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The principle of anticipatory self-defense, which is nowhere to be found in the UN Charter, has been nevertheless used to justify the use of force on many occasions in history. As you read the below facts, determine if it is a lawful use of force or not.

2) CUBAN MISSILE CRISIS13

In 1959, communist-inspired revolutionaries seized power in Cuba. Their leader, Fidel Castro, pledged to spread that revolution to the other republics of Central America. The revised Cuban Constitution thus states: "When no other recourse is possible, all citizens have the right to struggle through all means, including armed struggle, against anyone who tries to overthrow the political, social and economic order established in this Constitution." It further "advocates the unity of all Third World countries in the face of the neocolonialist and imperialist policy which seeks to limit and subordinate the sovereignty of our peoples, and worsen the economic conditions of exploitation and oppression of the underdeveloped nations...." (Cuban Const., Art. 3 & 12d).

In 1962, the US discovered that the Soviet Union was sending large missiles to Cuba–only ninety miles from Key West, Florida. The Organization of American States (OAS) expelled Cuba in 1962 (a unique expulsion). The OAS rationale was that the introduction of foreign armaments was incompatible with the principles and objectives of the inter-American system. U.S. President Kennedy advised the American people that the "Soviets have provided the Cuban Government with a number of anti-aircraft missiles." In October, he ordered a U.S. naval "quarantine" of Cuba, thus avoiding the more aggressive (but probably appropriate) term blockade. Kennedy described the U.S. action as "defensive" and taken in anticipation of an armed attack from Cuba. He also announced his willingness to go to war with the Soviet Union if it did not halt its missile shipments to Cuba.


Was the 1962 “quarantine” of Cuba by the United States an act of aggression that violated international law or was it a legitimate act of anticipatory self-defense? Were there any alternatives? You might also recall G.A. Res. 3314 as you formulate your analysis. Was is necessary and proportionate?

B. UN SECURITY COUNCIL (UNSC) AUTHORIZATION

The other codified exception to use force outlined under Article 51 of the UN Charter is Security Council Authorization. In order for the UNSC to authorize force, it must first find that a situation amounts to a “threat to the peace, breach of the peace or act of aggression” under Article 39 of the UN Charter. After such an assessment, Article 51 allows the UNSC to authorize non-consensual security operations, including the use of force. The Council consists of five permanent members (US, UK, France, China and Russia) and 10 non-permanent members selected by the General Assembly to serve two year terms. Actions sanctioned by the UNSC require a total of nine affirmative votes, and the absence of a negative vote (veto) by any permanent member. 13 http://www.tjsl.edu/slomansonb/CubanMissile.htmlSlomanson (last visited 1 June 2013).


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As one can imagine, the Cold War restrained the UNSC from acting in most situations for almost 40 years (either the US or the Soviet Union would veto action). In fact, during 1945 to 1990, the only Security Council authorization to use force against a “breach of the peace” was in response to North Korea’s attack on South Korea in 1950 (at a time when the Soviet Union was boycotting the Security Council and was therefore unable to cast a veto).14 Geopolitics indeed remains a factor. For instance, the likelihood of the UNSC authorizing the use of force in Syria to protect civilians from being killed is unlikely because of the relationships and interests that Russia has with Syria. Similarly, UNSC authorization to use force in a state with U.S. national security interests would likely be blocked by the U.S.

Despite these types of considerations, the UNSC has been more likely to act in recent times, but due to the way the UN system is set up, politics will always play a role—this is admittedly a weakness of international law. A recent example of Security Council authorization to use force is Resolution 1973 in 2011, which authorized the use of force to protect civilians and set up a no-fly zone in Libya, which eventually led to the demise of Muammar Gadhafi. Security Council Resolutions carry plenty of weight in the international community, and under Art 25 of the Charter, all members of the United Nations have agreed to accept and carry out the decisions of the Security Council.


Does Article 25 make the UNSC the world legislature/executive? Would the U.S. be required to do anything and everything required by a UNSC Resolution? What if the UNSC called for the use of force by all members against the Syrian government, could the U.S. do so without congressional involvement/approval considering that congress only has the power to declare war? Isn’t this a separation of powers issue? C. OTHER BASES FOR THE USE OF FORCE

Apart from the previously discussed concept of ELE, there are yet some more emerging concepts in international law due to the ever changing dynamics of warfare, which can involve the use of force by a state that aren’t specifically identified in the Charter. We’ll begin by exploring briefly the “Responsibility to Protect” (R2P) doctrine. The doctrine consists of a set of principles based on the idea that sovereignty is not simply a right, but a responsibility, and it focuses on preventing and stopping major crimes sometimes referred to as “Mass Atrocity Crimes.”15

The lack of an international response capable of preventing the various mass slaughters

of the late twentieth century (Rwanda, Liberia, the former Yugoslavia, and so on) has fueled the idea that the protection of civilians should be seen as an inescapable moral imperative and a collective responsibility of states.16 R2P is being touted as a new approach to protecting populations from mass atrocities. This developing doctrine, reference to which was included in the 2005 United Nations World Summit Outcome Document, dictates that when a state is

14 Murphy, supra note 4, at 447. 15 Mass atrocity crimes generally include genocide, crimes against humanity, war crimes, and ethnic cleansing. 16 See generally UNGA Res. 43/131, 8 December 1988 and 45/100, 14 December 1990.


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unwilling or unable to protect its citizens from actual or apprehended large scale loss of life (with or without genocidal intent) or large scale ‘ethnic cleansing’, the principle of non-intervention in the internal affairs of other states yields to the international responsibility to protect. This responsibility includes three elements: 1) A state has a responsibility to protect its population from mass atrocities, 2) The international community has a responsibility to assist the state to fulfill this responsibility, and 3) if the state fails to protect its populace and peaceful measures have failed, the international community has the responsibility to intervene through coercive measures. While initially non-violent, the measures may be extended to armed or unarmed coercive means, as authorized under Chapter VII of the UN Charter.

According to those who developed and promote R2P, responsibility for the use of force

should be guided by strict criteria. First, there must be seriousness of the harm done to the population, which could be considered the “threshold criteria” that leads to the invocation of R2P. Basically, there should be large scale loss of life (with genocidal intent or not), which is the product either of deliberate state action, or state neglect or inability to act, or based on a failed state situation. Second, the right intention to intervene must exist. The primary intent must be to halt or avert human suffering, and not necessarily to affect political regime change. The proper intent of intervention unsurprisingly will always be better assured with multilateral operations, which are clearly supported by regional opinion and the victims concerned. Third, the force must be a last resort situation, and it can only be justified when every non-military option has been explored with reasonable grounds for believing lesser measures would not have succeeded. Fourth, the force used must be proportional in that the scale, duration and intensity of the planned intervention should be the minimum necessary to secure the defined human protection objective. Fifth, there must be reasonable prospects of success in halting or averting the suffering caused by the circumstances. The consequences of the intervening state(s) action must not lead to worse circumstances than the consequences of inaction. And finally, there must be the authority to conduct such operations, which means that the highest level of legitimacy would be attained if the UNSC were the authority to authorize military intervention for R2P purposes.17

NOTES, COMMENTS, AND QUESTIONS What weaknesses and strengths do you note with R2P? Is this a good idea? Do you think this principle would ever be used to justify force against a powerful country, like China?

Another emerging concept for the use of force, which is not quite as embraced in the

international community as R2P, is the concept of preventive self-defense. This form of self-defense was actually embedded in the 2002 U.S. National Security Strategy, and is affectionately referred to as the “Bush” doctrine. The doctrine essentially states, in part, that: “We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends. Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of

17 Bruno Pommier, The Use Of Force To Protect Civilians And Humanitarian Action: The Case Of Libya And Beyond, International Review of the Red Cross, Vol. 93, pg. 1066 (2011).


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today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first.”18

NOTES, COMMENTS, AND QUESTIONS Does the Bush doctrine swallow any limitations put on the use of force under the UN Charter? How do you think this is perceived in the international community? Should the U.S. care? What if the intelligence amounting to the use of force under the Bush doctrine is incorrect or incomplete? III. JUS IN BELLO

The previous section explored the fundamentals and the contours of the law dealing with when states can/cannot use force.19 This section of the chapter will explore some of the important principles of the law applicable after the fighting/armed conflict begins—the law of armed conflict (LOAC), often referred to as Jus in Bello. A. BACKGROUND

Just as war is not a new phenomenon, neither is LOAC. This area of the law has evolved over the years in an effort to regulate the conduct of participants in armed hostilities, thereby lessening suffering. It was recognized during classical Greek times that “common customs” forbade practices during warfare that included the unrestricted punishment of prisoners and the deliberate targeting of civilians.20 Such customs evolved and were adopted over the years by countries throughout the world though they were not always consistently adhered to (e.g., bombing of European cities by both sides during WWII, extermination camps in Poland, forced marching of prisoners out of the Bataan peninsula, and U.S. use of incendiary bombs on German cities). Despite these seemingly egregious misdeeds throughout history, the United States has taken the world lead in the area of LOAC development; however, incidents such as Abu Ghraib and Guantanamo Bay have probably hurt the U.S.’s credibility in this area.

The first formal Western codification of the law of war came from the U.S. Army and was written in 1863 during the American Civil War. General Order 100, which was promulgated by President Lincoln, is often referred to as the Lieber Code for its author, Francis Lieber. It initially only applied to Union soldiers, but its influence in developing LOAC is undeniable. For example, it heavily influenced the development of codes of military conduct of other states, and it also influenced efforts to develop international instruments on the subject. In 1868, states agreed to prohibit the use of bullets that explode upon contact because such bullets not only disable the soldier, but also cause extraordinary suffering and make medical treatment extremely difficult. 21

18 http://www.harvard-jlpp.com/wp-content/uploads/2009/05/YooFinal.pdf. (last visited 1 June 2013). 19 For a more comprehensive reading on jus ad bellum, see Yoram Dinstein, War, Aggression, and Self-Defense (5th ed. 2011). 20 MICHAEL HOWARD, ET AL, EDS. THE LAWS OF WAR 13 (1994). 21 Murphy, supra note 4, at 455.


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Later, in the aftermath of several bloody Balkan wars and at the behest of President Theodore Roosevelt, the countries of the world developed the Hague Conventions that regulated the means and methods of warfare (Hague Law). At the center of these rules was the 1907 Hague Convention IV that laid down many of the basic laws of warfare that remain in force today. After World War II, the principles derived from the Nuremberg trials, along with the four 1949 Geneva Conventions,22 which mainly deal with the protections for victims of warfare, added to the development of LOAC and essentially became the world’s guide for the conduct of war. In addition, the two 1977 Additional Protocols to the 1949 Geneva Conventions, which continued to refine and develop LOAC, play a significant role in establishing LOAC principles.23 You may have noted that major LOAC treaties have developed chronologically subsequent to conflicts that exposed various weaknesses in the law. For instance, the Geneva Conventions came into being after WW II and the Additional Protocols after Vietnam…. Some scholars now call for new LOAC conventions to address modern developments in the means and methods of warfare. B. A SNAPSHOT OF CONTEMPORARY PRACTICE Legally speaking, modern LOAC distinguishes only two types of armed conflicts, namely: International armed conflict (IAC), and non-international armed conflict (NIAC). Despite colloquial terms such as the war against drugs, the war against Islam, the war against terror, the war against women, and so on, no other type of armed conflict exists under international law. The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a rather simple and general definition of IAC. In the Tadic case, the Tribunal stated that "an armed conflict exists whenever there is a resort to armed force between States". The standard is not very high, and this definition has been adopted by other international bodies since then. Furthermore, according to the International Committee of the Red Cross (ICRC), an IAC occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation.24 Probably more pervasive in modern times are NIACs. And in order to distinguish a NIAC from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. In addition, non-governmental groups involved in the conflict must be considered as "parties to the conflict," meaning that they possess organized armed forces. This means that these forces have to be under a certain command structure and have the capacity to sustain military operations. Therefore, two criteria must be met for there to be a NIAC: 1) the armed groups involved must show a minimum degree of organization, and 2) the armed confrontations must reach a minimum level of intensity. The satisfaction of these criteria is determined on a case-by-case basis by

22 Every state has ratified or acceded to the 1949 Geneva Conventions. 23 The U.S. is not a ratifying party to either additional protocol I or II, but considers much of each binding as customary international law. 24 http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (last visited 4 June 2013).


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weighing numerous indicators. Still, there is another, albeit more restrictive, view on what constitutes NIAC. Additional Protocol II (AP II) introduces a requirement of territorial control by providing that non-governmental parties must exercise such territorial control "as to enable them to carry out sustained and concerted military operations and to implement this Protocol".25 It is nevertheless important to underscore that a situation can evolve from one type of armed conflict to another, depending on the facts prevailing at a certain moment. For instance, let’s say there is an on-going civil war in Syria between rebels and the government of Syria, clearly a NIAC. However, if another state decided to intervene and sufficiently support the rebels, there likely would be a change in the character of the war, and it likely would be considered an IAC because now the belligerent parties are the state of Syria and another state, which happens to be supporting the rebels. Strictly speaking, the full body of LOAC applies only in an IAC (i.e., India v. Pakistan). Once an international armed conflict has begun, LOAC governs the conflict, and the majority view is that Human Rights Law is also operative.26 However, if the conflict is a NIAC (i.e., a civil war) a less restrictive body of LOAC applies, which includes only Common Article 3 of the Geneva Conventions and potentially AP II as outlined above, and Human Rights law. In addition, LOAC is not necessarily applicable in small-scale internal disturbances or civil strife. For instance, if a group of individuals in San Francisco decided that the U.S. federal government has become too oppressive, and decided to pursue efforts to overthrow the government, which effort was then quelled by the local police, this would not rise to the level of an internal armed conflict based on the prevailing threshold criteria. In these types of situations, domestic law and human rights law applies. Such individuals would be arrested and prosecuted under the laws governing the state. It should be noted that, as a matter of U.S. national policy, the DoD Law of War Program requires all members of the armed forces to “…comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations” per DOD Directive 2311.01E, May 2006. This policy therefore essentially minimizes the differences between IACs and NIACs for officers at a tactical level. See if you can determine the classification of the following conflict scenarios? NOTES, COMMENTS, AND QUESTIONS 1. War between the U.S. and Pakistan? 2. U.S. installs new govt. after defeating Pakistan. An insurgency rises to fight the new govt.? The U.S. is still there to support the new govt.? 3. War between rebels in Texas (control southern tip) and U.S. govt.?

25 http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (last visited 1 June 2013). 26 Discussion of Human Rights Law is beyond the scope of this Chapter.


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4. War b/w rebels in Texas and U.S., and U.S. is supported by Mexico? Mexico switches sides, now attacks U.S. in support of the rebels? 5. Rebels fighting another group of rebels in State X where govt. has crumbled? To further help illustrate when this area of the law applies, what is “war” and the legal implications of a finding of war, the below U.S. federal case offers additional guidelines for these questions.

UNITED STATES V. PLENTY HORSES27

Federal District Court, Sioux Falls, South Dakota (1891, not reported)

In January 1891, the American Civil War had been over for twenty-six years but the U.S. Army was still fighting plains Indians in the country’s rugged west and north. The fighting was drawing to a close as the bonds of civilization were confining Indians to reservations. In the two-year old state of South Dakota, word of a 29 December 1890 massacre at Wounded Knee Creek reached the Sioux Rosebud Reservation, twenty miles to the east of Wounded Knee. Ostensibly fearing an attack by soldiers similar to that at Wounded Knee, the Reservation’s Brulé Sioux rebelled and took up defensive positions in the northwestern portion of the nearby Pine Ridge Reservation. The Sioux feared the worst for their own band and they formed small bands of young men to fight the U.S. soldiers. One of the Sioux fighters was twenty-two year old Senika-Wakan-Ota, or Plenty Horses, as he was known to English-speakers. Among the Sioux, Plenty Horses was viewed with some suspicion. He had five years of schooling, forced upon him by the U.S. government, from age thirteen to eighteen, at the Indian boarding school at Carlisle Barracks, Pennsylvania. He had returned to the reservation burdened with the white man’s ways and language, no longer considered fully an Indian, but clearly not a white man. “I was an outcast…I was no longer an Indian,” Plenty Horses said. First Lieutenant Edward W. “Ned” Casey, West Point class of 1873, had almost twenty years Army service, including four years as a tactics instructor at the Military Academy. His father, Brevet Major General Silas Casey, was an author of the Army’s infantry tactics manual and his brother, Brigadier General Thomas L. Casey was Chief of the Army Corps of Engineers. A capable and popular officer of proven bravery in the Sioux campaigns of 1877, Ned Casey’s lengthy time in grade as a lieutenant was a reflection of the Army’s promotion-by-seniority system, rather than any lack of soldierly skills.

On the morning of 7 January, Lieutenant Casey and two Cheyenne scouts approached the Brulé and Oglala camp at No Water, South Dakota. Casey intended to parley with the chiefs and see if a peaceful settlement of the Wounded Knee uprising could be achieved. At White Water Creek, Casey and his scouts were met by a band of about forty Brulé Sioux, including Plenty Horses. Handshakes were exchanged and Casey explained his desire to meet with their chiefs. He conversed briefly with Plenty Horses, whose English had deteriorated since his return from the Carlisle boarding school, years before. An emissary from the chiefs rode out and said that Casey should not go further because younger Indians in the camp remained agitated over Wounded Knee and, besides, the chiefs planned to confer with Casey’s superior, General Nelson Miles, the next day. Casey turned his horse to depart. “Plenty Horses took his Winchester from under his blanket, calmly raised it to his shoulder, and fired one shot. The

27 Gary D. Solis, The Law of Armed Conflict 30 (2010).


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bullet tore into the back of Casey’s head and came out just under the right eye. The horse reared and pitched its rider from the saddle. Casey crashed to the ground on his face, dead.” Unrelated to Casey’s death, eight days later, on 15 January 1891, the Sioux leaders surrendered to General Miles and the last Plains Indian campaign was over. Miles, who would be promoted to full general twelve years later, had not forgotten Lieutenant Casey, however. He ordered Colonel William Shafter to arrest Plenty Horses for Casey’s murder. The arrest was made and, in the civilian community, a Deadwood South Dakota grand jury indicted Plenty Horses for murder. He was released by military authorities for trial in the federal district court at Sioux Falls. The trial opened in late April, housed in the Sioux Falls Masonic Temple, where the court sat when it came to town. From the outset, Plenty Horse’s two lawyers, George Nock and David Powers, both working pro bono, made clear the defense strategy: The U.S. Army and the Sioux Indians viewed themselves as opposing belligerents in a state of war, they said. Under customary law of war, combatants of opposing belligerent armed forces are entitled to kill each other without criminal penalty – the combatant’s privilege. The trial began. Evidence adduced over the first three days of trial made clear that Plenty Horses had killed Lieutenant Casey, and that the Indians in No Water camp thought themselves at war with all U.S. soldiers. When Plenty Horses took the witness stand to testify, the two judges, Alonzo Edgerton, a former Army brigadier general, and Oliver Shiras, a Civil War veteran like Edgerton, would not allow him an interpreter. Angrily, Plenty Horse’s lawyers closed the defense case then and there. Closing arguments followed and Judge Shiras instructed the jury: Although the Sioux did not constitute an independent nation with legal authority to declare war, he said, they still had the power to go to war. If the jurors felt that a state of war existed in actual if not in legal fact, they should acquit the defendant. If they judged a war not to be in progress and Plenty Horses to have shot Casey with malice and deliberation, they should find him guilty of murder. If in the second circumstance the killing had occurred without premeditation and in a condition of great mental excitement, the verdict should be manslaughter. The jury, mostly local farmers, deliberated through the night and into the next day. Shortly before noon they informed the judges that after twenty-three ballots they remained deadlocked, six for murder, six for manslaughter. The judges declared a mistrial. Leaving the courtroom, Plenty Horses said in halting English, “I thought last night that they would hang me sure, but now I feel it will not be so…” Days later, on 23 May 1891, the second trial of Plenty Horses opened with essentially the same participants. The testimony, too, was much the same as in the first trial and the concept of the combatant’s privilege was again the central issue. The prosecutor, William Sterling, had called on General Miles at his headquarters in Chicago, asking him to testify that the Army had not been in a state of war with the Sioux. Instead, Miles sent an officer from his staff, Captain Frank D. Baldwin, to Sioux Falls to testify not for the government but for the defense! Newspapers reported that General Miles advised the prosecutor, “My boy, it was a war.” He added, “You do not suppose that I am going to reduce my campaign to a dress-parade affair?” After all, Miles pointed out, until handed over to federal marshals for trial, Plenty Horses was held at Fort Meade as a prisoner of war; the Army’s report of Lieutenant Casey’s death indicated that he had been scouting a hostile camp; a written order from General Miles indicated Plenty horses was a “war prisoner.” After meeting with General Miles, Prosecutor Sterling was powerless to stop the train bearing down on his case. Miles’ emissary, Captain Baldwin, had been awarded not one but two Medals of Honor. He had been a close friend of Lieutenant Casey’s, and he testified in the defense case as General Miles predicted. Baldwin also proffered Army documents proving who Lieutenant Casey’s killer was, and additionally indicating the state of hostilities between the Army and the Sioux. Following Captain Baldwin’s


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testimony, defense attorney Nock announced that the defense case was concluded. He turned to deliver his closing argument to the jury. Judge Shiras raised his hand. “Wait a moment, gentlemen…If you have both concluded the presentation of testimony, I have something to say to the jury….[I]t clearly appears that on the day when Lieutenant Casey met his death there existed in and about the Pine Ridge Agency a condition of actual warfare between the Army of the United States there assembled under the command of Major General Nelson Miles and the Indian troops occupying the camp on No Water and in its vicinity.” The judge went on to note that the trial turned on this question of war, which, he then opined, had been shown to exist beyond a reasonable doubt. He went on to say that Casey unquestionably was a combatant. While the manner in which Plenty Horses killed him merited severe condemnation, Casey was engaged in legitimate warfare against the Sioux and, the judge said, with equal legitimacy, Casey could be killed by the enemy against whom he was fighting. If the attack on Wounded Knee was not a wartime event, Shiras reminded the court, then the soldiers who had participated should all be charged with murder. If Lieutenant Casey were to have killed Plenty Horses while reconnoitering the Indian camp at No Water, the judge continued, surely he would not have been charged with murder. The killing of Casey could only be viewed as an act of war. Shiras directed the jury to so find, which they promptly did. The two trials of Plenty Horses were over. During the trial prosecutor Sterling had not asked witnesses why, if Plenty Horses was at war, he had immediately opened fire upon encountering the Casey group, or why he shot only Lieutenant Casey and not the scouts who accompanied him. Or why the scouts had not returned his fire. Or why the parties had engaged in conversation before the killing of Casey. Nor did Sterling point out that prior U.S. treaties with the Sioux and other Indians referred to them as “tribes,” rather than “nations.” Now those points were moot, as was the question of whether General Miles dispatched Captain Baldwin to testify for the defense to insure no soldier could be charged for actions at Wounded Knee. The day’s leading interpreter of military law, William Winthrop, wrote of Plenty Horses, “the laws of war justify the killing or disabling of members of the one army by those of the other in battle or hostile operations. In such operations would be included, with us, Indian hostilities.”28 NOTES, COMMENTS, AND QUESTIONS Was there a war under modern LOAC? Would it be an IAC or NIAC? Were the actions of Plenty Horses “honorable”? Should actions in war be honorable? What is the combatant’s privilege, and does it exist in both IAC and NIAC? What is the difference between ruses/perfidy? In this area of the law, it’s extremely important to determine whether a conflict exists in the first place, and specifically what type of conflict exists because that characterization dictates what law applies, and the status of individuals involved in operations. By now, you should have a handle on what constitutes an armed conflict and its status, and the applicable law that may or may not apply. This is the basic starting point for most LOAC analyses, but there is another matter critical to the LOAC analysis-LOAC’s four core principles. 28 Following his acquittal, Plenty Horses, a combatant by decision of a United States District Court, returned to South Dakota’s now peaceful Rosebud Reservation. He eventually married and had a son, Charles. His return to obscurity was interrupted only by a personal appearance at the South Dakota exhibit of the Chicago World’s Fair, in 1893. Never fully accepted by the Sioux and only tolerated by the white man, Plenty Horses died on 15 June, 1933, a year after the deaths of his wife and son.


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C. CORE PRINCIPLES OF LOAC In examining various LOAC issues, such as the bombing of a city, the killing of Osama Bin Laden, the use of a particular weapon; i.e., a drone, or assessing collateral damage, the core principles of LOAC are inevitably implicated. We now turn to an examination of 1) Distinction, 2) Military necessity, 3) Unnecessary suffering,29 and 4) Proportionality, the four core principles of LOAC. 1) DISTINCTION The principle of distinction is the most fundamental principle in LOAC. Essentially, distinction requires that “the Parties to the Conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives . . . .”30 Indiscriminate attacks are those that are not directed at a specific military objective, employ a method or means of combat which cannot be directed at a specific military objective, or employ a method or means of combat the effects of which cannot be limited as required.31 This may come as a surprise to some, but military members basically wear uniforms during combat operations so that the enemy knows who to shoot. This helps distinguish you from the civilian population. Consequently, an attack that is “indiscriminate” is illegal under LOAC. So, one could also violate the principle of distinction by the use of an otherwise lawful weapon in a manner without regard to the target hit, such as dropping precision guided munitions without properly identifying the target as a military objective. Additionally, the use of a weapon may be illegal because the weapon itself is indiscriminate, (e.g., the use of V-2 rockets and other unguided missiles, saturation bombing of urban areas, firebombing, and the use of biological or chemical weapons). Simply put, after an appropriate military object has been selected as a target, due care must be taken to put the munitions on the target and not on protected persons or places. Consider the following summary of events and determine if this was a violation of LOAC.

THE AL FIRDOS BUNKER INCIDENT32 In Gulf War I, Desert Storm/Desert Shield (1991), the bombing of the Al Firdos bunker raised issues of distinction. The city block-square bunker, sometimes referred to as the Amariyah, or Al-‘Amariyah shelter, was located in the Amariyah suburb of southwest Baghdad. It was built in the early 1980s by Finnish contractors and was renovated in 1985. During the Iran-Iraq war (1980-86) it was used as a civilian air raid shelter. But by 1991 the multi-level bunker was camouflaged, guarded, surrounded by barbed wire and, according to a spy who was an official in Saddam’s government, one level of the bunker was used by the Mukhabarat, the Ba’ath Party’s secret police, and another level as a military command and control center. On February 5, signals intelligence revealed command and control radio traffic emanating from the bunker, next to which military vehicles were regularly parked. The Al Firdos bunker was added to the U.S. Air Force’s Master Attack Plan.

29 Sometimes referred to as humanity. 30 Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 12 Dec. 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) Art 48. 31 Id. at Art. 51. 32 Solis supra note 26, at 257.


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Although 3,263 reconnaissance sorties were flown during the war and its run-up, including daylight satellite coverage of the bunker, it was not detected that, each night, the wives and children of the secret police sheltered from U.S. air raids in the bunker’s basement. On the night of 12-13 February 1991, at 0430 local, two F-117s each dropped a 2000-pound GBU-27 laser-guided delay-fused bomb, each bomb slicing through the ten-foot thick hardened roof of the Al Firdos bunker. The next morning, CNN televised rescuers as they removed 204 bodies, most of them civilians, many of them children, from the ruins of the shelter. It was reported that U.S. intelligence erred, grievously, in failing to detect the presence of so many civilians, and that the horrific scenes from Amariyah, televised around the world, provided Saddam with an immense propaganda victory. In future months, any air strike proposed for Baghdad, and they dwindled in number dramatically, was personally reviewed and approved by both the Chairman of the Joint Chiefs, General Colin Powell and, in Riyadh, by General Norman Schwarzkopf, the Allied coalition’s commander. NOTES, COMMENTS, AND QUESTIONS Was the bombing of the Al Firdos bunker a violation of distinction? Or, was it a lawful military objective? Were civilians targeted? Were the victims effectively human shields? Was the U.S. reckless in its targeting? Or, if a Party to a conflict places its citizens in positions of danger through failure to separate military and civilian activities, does that Party bear responsibility for the consequences? The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that to constitute a violation of distinction, the act must have been committed willfully, “intentionally in the knowledge…that civilians or civilian property were being targeted…”33 The term, “willfully” incorporates recklessness, but excludes simple negligence. Thus, an accused who recklessly attacks civilians or civilian objects acts willfully,34 and the presence of individual combatants in the midst of a civilian population does not change the civilian character of that population.35 Still, distinction is not an absolute. “Civilians may be put at risk by attacks on military targets, as by attacks on terrorist targets, but the risk must be kept to a minimum, even at some cost to the attackers.”36 NOTES, COMMENTS, AND QUESTIONS Could U.S. forces attack/bomb enemy defense factory with 10 or 20 or 100 civilians inside? What if U.S. wants to target civilians working administrative duties for an enemy state’s armed forces by bombing its defense HQs? What if you are in enemy territory attempting to hide from the enemy, and a young civilian girl attempts to give away your position—should you shoot her?

33 Prosecutor v. Blaškić , IT-95-14-T at para. 180 (3 Mar 2000). 34 Prosecutor v. Galic, IT-98-29-A at para. 54 (2006). 35 Id. at para. 50. 36 Michael Walzer, Arguing About War 61 ((2004).


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2) MILITARY NECESSITY The principle of military necessity was first defined in the Lieber Code as “[t]he necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usage of war.” This definition has essentially remained unchanged over the years. It is important to note that military necessity is limited by distinction. For example, simply because a commander thinks destruction of a village would hasten the end of a war, does not translate said destruction into lawful military necessity because distinction (and the other LOAC principles) must still be adhered to. No more force or greater violence should be used to carry out a military operation than is necessary in the circumstances. After a determination is made by the commander that there is a military necessity to strike a certain target or engage in a certain mission, the commander must make a determination that the target or action constitutes a lawful military objective. What constitutes a military objective is best defined in Geneva Protocol I, Article 52(2): “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.” International law does not specifically enumerate those acts that may be committed in the name of military necessity. But, before selecting a target, the first question the target selection group must ask is, “Is there a military reason for selecting this target for attack?” If this question is answered in the affirmative, and if the potential target is determined to be a military objective as defined above, it may be attacked, subject to compliance with other LOAC provisions. If it is not, or if there is a doubt as to whether it is a military object, it may not be attacked.37 Some potential targets are easily classified as military objectives and may be selected as targets. For example, enemy armed forces, warships and aircraft, as well as their installations, fortifications, airfields or ports are clearly military objectives. Additionally, lines of communication of military importance, weapons industries and other industries of fundamental military importance, and military research and development facilities are all potential military objectives. In contrast, objects classified as “civilian objects,” including the civilian population, may not be targeted because, among other reasons, there is no military necessity to do so. And other potential targets may be specifically prohibited from attack by treaty provisions. For example, those objects marked by the Red Cross, Red Crescent, and the newest adopted symbol of the ICRC, the red crystal,38 are considered protected medical and humanitarian facilities and are prohibited from attack. An extension of this principle of military necessity (plus distinction) is articulated in the Convention for the Protection of Cultural Property in the Event of Armed Conflict, which entered into force in 1954 and protects buildings and items that are the part of the cultural heritage of mankind. Examples include monuments of architecture, art or history;

37 Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 12 Dec. 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) art. 52 (3). 38 Protocol Additional to the Geneva Conventions Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 Dec. 2005, (entered into force 22 June 2006).


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archaeological sites; buildings which are of historical or artistic interest; works of art, manuscripts, books and other objects of artistic, historical or archaeological interest; and scientific collections and important collections of books or archives. The Convention generally prohibits the targeting of such objects, and requires that parties undertake to safeguard cultural property situated within their own territory against the foreseeable effects of an armed conflict. It is also unlawful, however, to use cultural property as a shield for military forces. In the event cultural property, or other protected places for that matter, is being used improperly by the enemy force, it may lose its protection under LOAC and would be subject to the collateral damage of an attack on the enemy forces. The rules of military necessity must be followed even at risk of the loss of a battle or possibly the war itself. This contrasts with the principle of “Kreigsraison,” the German doctrine of military necessity derived from the theory that the ends justify any and all means. Under the latter view, a matter of urgent necessity, such as the safety of the armed force, could override LOAC. In U.S. v. Krupp, the Nuremberg Military Tribunal rejected this view, observing that, “[t]o claim that the laws of war can be wantonly and at the sole discretion of any one belligerent disregarded when he considers his own situation to be critical, means nothing more or less than to abrogate the laws and customs of war entirely.” Therefore, military necessity cannot be considered a defense for the violation of rules (such the argument that torture can be justified if it will save lives). NOTES, COMMENTS, AND QUESTIONS Would you follow LOAC if you knew you would lose the war? Is USAFA a valid military target for an enemy force? What about the USAFA Chapel? Must you kill/destroy all enemy forces while waging war? Does military necessity ever allow you to ignore LOAC if doing so will prevent defeat and allow victory? 3) PROPORTIONALITY Attacks must also comply with the principle of proportionality. The principle of proportionality applies, in the course of an otherwise necessary and discriminate attack, only when there is a risk of incidental loss of civilian life or damage to civilian objects. In other words, if the injury and/or destruction impacts only military objects and no collateral damage is contemplated, this principle is not necessarily relevant to the equation. So firing at an enemy military ship when there are no other civilian ships in the area would not necessarily implicate the concept of proportionality. While the word “proportionality” never appears in the LOAC treaties, the principle is codified in Protocol I, Article 57(2)(a)(iii).

[T]hose who plan or decide upon an attack shall ... refrain from deciding to launch any 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.

As this principle is subject to widespread misunderstanding, it might be helpful to look at what proportionality is not. The following are some examples where this principle has been misunderstood: 1) A U.S. officer stated that the rule of proportionality was violated when the


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U.S. Navy used F-14 fighters to attack and destroy two older and slower Libyan Su-22s (superior technology/performance does not implicate proportionality); 2) An attendee to the Additional Protocol I Diplomatic Conference stated that the rule of proportionality was violated if a state used six bombs when only five were necessary (the important thing to focus on is collateral damage). It is not illegal under LOAC to use weapons and tactics that are far superior to those of your opponent. If, however, it is determined that the attack poses a risk to civilians or civilian objects, a balancing test under the principle of proportionality must be done. One must weigh the probability of death or destruction to civilians and civilian objects and the extent of that damage to the military advantage that would be gained. So long as the collateral damage is not excessive in relation to the military advantage gained, the attack may be accomplished, subject to other LOAC provisions. The commander makes this decision on the basis of an honest and reasonable estimate of the facts known or reasonably available at the time. The decision is a highly subjective one made on a target-by-target basis. NOTES, COMMENTS, AND QUESTIONS How many civilian lives/how much civilian property would have been “worth” Osama Bin Laden if it had been necessary to use a missile to take out Bin Laden at a civilian compound? Could you take out an enemy sniper holed up in a minaret of a historical and culturally significant mosque with a cruise missile? Does stronger party have obligation to stop shooting if battle is lopsided? 4) UNNECESSARY SUFFERING The final principle recognizes the dignity of the individual human being and requires the mitigation of human suffering. Art 35.2 of Additional Protocol I provides that: It is prohibited to employ weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Nations engaged in armed conflict do not possess an unlimited choice of methods or means of warfare. In fact, there are treaties that specifically ban a number of weapons. These include prohibitions on biological and chemical weapons, anti-personnel mines and blinding laser weapons…. In the absence of a treaty prohibition, general principles of LOAC govern weapon use. Common sense informs us that all weapons, more or less, cause suffering. The critical question is whether the suffering is needless, superfluous or disproportionate to the military advantages secured, not the degree of suffering itself. For instance, using materials that are difficult to detect or are undetectable by field x-ray equipment such as clear plastic or glass as the injuring mechanism in ammunition are prohibited because they unnecessarily inhibit the treatment of wounds. In addition, a state must determine whether a weapon, or a certain use of a weapon, causes unnecessary suffering. States that have ratified AP I are required to test and ensure that new weapons comply with the Protocol’s prohibition of unnecessary suffering, and this


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obligation applies to countries manufacturing weapons, as well as those purchasing them.39 Article 36 of AP I requires each state party to ensure that the use of any new weapons, means or methods of warfare that it studies, develops, acquires or adopts comply with the rules of international humanitarian law. However, all states have an interest in assessing the legality of new weapons, whether or not they are party to Additional Protocol I because such assessments contribute to ensuring that the State's armed forces can conduct hostilities in accordance with that State's international obligations.40 This is a common practice in the U.S.—all weapons used operationally are tested in accordance with LOAC, and are subject to a legal review before they become operational. If a U.S. military member is issued a weapon, the member can be confident that it has been reviewed for legality under international law. NOTES, COMMENTS, AND QUESTIONS What do you think about nuclear weapons in the context of the four core principles of LOAC? Do they comply with the principles of LOAC? What are your thoughts on the next case? The rule against inflicting ‘superfluous’ casualties leaves unclear whether it is permissible to kill large numbers of civilians to achieve a necessary military objective (destroying enemy forces deliberately dispersed in a civilian neighborhood) or to bring a costly war to a speedier end (the nuclear bombing of Hiroshima and Nagasaki). But a 1963 trial discussed the outlines of these questions. Note the jurisdiction, and as you read this extract from the Court’s opinion, note the references to all four core LOAC principles.

SHIMODA ET AL. V. STATE41 Tokyo District Court

December 7, 1963 Prior claims by survivors for monetary relief had been rejected by the city of Hiroshima although, under Japan’s Atomic Survivor’s Support Law, survivors are eligible for government-provided health care, up to $1,260 per month in reparations, and funeral expenses. The plaintiffs in this civil suit were Ryuichi Shimoda and four others, residents of Hiroshima or Nagasaki who had been injured in the atomic bombings of their cities. They sued Japan in lieu of the United States for their injuries, alleging the bombings were unlawful and Japan had wrongfully waived the claims for compensation of her citizens. The Japanese government defended that the bombings were not unlawful, stressing that, although many noncombatants were killed and injured, the bombings brought about the surrender of Japan, preventing many other casualties on both sides. There is no doubt that, whether or not an atomic bomb having such a character and effect is a weapon which is permitted in international law as a so-called nuclear weapon, is an important and very difficult question in international law. In this case, however, the point at issue is whether the acts of atomic bombing of Hiroshima and Nagasaki by the United States are regarded as illegal by positive international law at that time….

39 Solis, supra not 26, at 271. 40 http://www.icrc.org/eng/war-and-law/weapons/new-weapons/overview-review-of-new-weapons.htm (last visited 1 June 2013). 41 http://www.icrc.org/ihl-nat.nsf/46707c419d6bdfa24125673e00508145/aa559087dbcflaf5c 1256a1c0029f14d?OpenDocument. (last visited 1 June 2013).


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[T]he defendant State alleges that the question of violation of positive international law does not arise, since there was neither international customary law nor treaty law prohibiting the use of atomic bombs at that time, and the use is not prohibited clearly by positive international law. Of course, it is right that the use of a new weapon is legal, as long as international law does not prohibit it. However…from the interpretation and analogical application of existing international laws and regulations…the prohibition includes also the case where…the use of a new weapon is admitted to be contrary to the principles [of international law]. It is right and proper that any weapon contrary to the custom of civilized countries and to the principles of international law, should be prohibited even if there is no express provision in the laws and regulations…Although there are always many objections in every field against the invention and use of new weapons. They are soon regarded as advanced weapons, and the prohibition of the use of such weapons becomes altogether nonsensical. With the progress of civilization, a new weapon comes to be rather an efficient means of injuring the enemy. This is shown in history, and the atomic bomb is not an exception…This, however, is not always true. This will be clear from the recollection of the existence of the above-mentioned treaties prohibiting the use of dum-dum bullets and poisonous gases. Therefore, we cannot regard a weapon as legal only because it is a new weapon, and it is still right that a new weapon must be exposed to the examination of positive international law. Against the defended city and place, indiscriminate bombardment is permitted, while in the case of an undefended city and place, bombardment is permitted only against combatant and military installations (military objectives) and bombardment is not permitted against non-combatant and non-military installations (non-military objectives). Any contrary bombardment is necessarily regarded as an illegal act of hostility…. With regard to air warfare, there are “Draft Rules of Air Warfare.” Article 24 of the Draft Rules provides that: “(1) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. (2) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition, or distinctively military supplies; lines of communication or transportation used for military purposes. (3) The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph (2) are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. (4) In the immediate neighborhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate, provided there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population….Further, article 22 provides for that “aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants, is prohibited.” In other words, these Draft Rules of Air Warfare prohibit useless aerial bombardment and provide for the principle of military objective first of all….The Draft Rules of Air Warfare cannot directly be called positive law, since they have not yet become effective as a treaty. However, international jurists regard the Draft Rules as authoritative with regard to air warfare…Therefore, we can safely say that the prohibition of indiscriminate aerial bombardment on an undefended city and the principle of military objective, which are provided for by the Draft Rules, are international customary law…. Then, what is the distinction between a defended city and an undefended city? Generally speaking, a defended city is a city resisting any possible occupation attempt by land forces. A city which


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is far distant from the battlefield, and is not in pressing danger of the enemy’s occupation, even if there exists defensive installations or armed forces, cannot be said to be a defended city, since there is no military necessity of indiscriminate bombardment...On the contrary, against a city resisting a possible occupation attempt by the enemy, indiscriminate bombardment is permitted out of military necessity, since an attack made upon the distinction between military objective and non-military objective has little military effect and cannot accomplish the expected purposes. Thus, we can say that it is a long-standing, generally recognized principle in international law respecting air raids, that indiscriminate aerial bombardment is not permitted on an undefended city and that only aerial bombardment on military objectives is permitted. Of course, it is naturally anticipated that the aerial bombardment of a military objective is attended with the destruction of non-military objectives or casualty of non-combatants; and this is not illegal if it is an inevitable result accompanying the aerial bombardment of a military objective. However, it necessarily follows that in an undefended city, an aerial bombardment directed at a non-military objective, and an aerial bombardment without distinction between military objectives and non-military objectives (the so-called blind aerial bombardment) is not permitted in light of the above-mentioned principle…. It is a well-known fact that Hiroshima and Nagasaki were not cities resisting a possible occupation attempt by land forces at that time. Further, it is clear as stated above that both cities did not come within the purview of the defended city, since they were not in the pressing danger of an enemy’s occupation, even if both cities were defended with anti-aircraft guns, etc. against air raids and had military installations. Also, it is clear that some 330,000 civilians in Hiroshima and some 270,000 civilians in Nagasaki maintained homes there, even though there were so-called military objectives such as armed forces, military installations, and munitions factories in both cities. therefore, since an aerial bombardment with an atomic bomb brings the same result as a blind aerial bombardment from the tremendous power of destruction, even if the aerial bombardment has only a military objective as the target of its attack, it is proper to understand that an aerial bombardment with an atomic bomb on both cities of Hiroshima and Nagasaki was an illegal act of hostility as the indiscriminate aerial bombardment of undefended cities. Against the above conclusion, there is a counter-argument that the war of the day was the so-called total war, in which it was difficult to distinguish between combatant and non-combatant, and between military objective and non-military objective, and that the principle of military objective was not necessarily carried through during World War II….[H]owever, we cannot say that the distinction between military objective and non-military objective has gone out of existence. For example, schools, churches, temples, shrines, hospitals and private houses cannot be military objectives, however total the war may be. If we understand the concept of total war to mean that all people who belong to a belligerent are more or less combatant, and all production means production injuring the enemy, there arises the necessity to destroy the whole people and all the property of the enemy; and it becomes nonsensical to distinguish between military objective and non-military objective…The concept of total war is not advocated in such a vague meaning as stated above, and there was no actual example of such situation. Accordingly, it is wrong to say that the distinction between military objective and non-military objective has gone out of existence because of total war. During World War II, aerial bombardment was once made on the whole place where military objectives were concentrated, because it was impossible to confirm an individual military objective and attack it where munitions factories and military installations were concentrated in comparatively narrow places, and where defensive installations against air raids were very strong and solid; and there is an opinion regarding this as legal….However, the legal principle of the aerial bombardment on an objective zone cannot apply to the city of Hiroshima and the city of Nagasaki, since it is clear that both cities could not be said to be places where such military objectives concentrate.


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Besides, the atomic bombing on both cities of Hiroshima and Nagasaki is regarded as contrary to the principles of international law that the means which give unnecessary pain in war and inhumane means are prohibited as means of injuring the enemy. In the argument of this point, it goes without saying that such an easy analogy that the atomic bomb is necessarily prohibited since it has characteristics different from former weapons in the inhumanity of its efficiency is not admitted. For international law respecting war is not formed only by humane feelings, but it has as its basis both military necessity and efficiency and humane feelings, and is formed by weighing these two factors….On the other hand, however great the inhumane result of the use of a weapon may be, the use of the weapon is not prohibited by international law, if it has a great military efficiency. The issues in this sense are whether atomic bombing comes within the purview of “the employment of poison or poisonous weapons” prohibited by article 23(a) of the [1907] Hague Regulations respecting war on land….With regard to this point, there is not an established theory among international jurists in connection with the difference of poison, poison-gas, bacterium, etc. from atomic bombs. However, judging from the fact that the St. Petersburg Declaration declares that “…considering that the use of a weapon which increases uselessly the pain of people who are already placed out of battle and causes their deaths necessarily is beyond the scope of this purpose, and considering that the use of such a weapon is thus contrary to humanity…” and that article 23(e) of the Hague Regulations respecting war on Land prohibits “the employment of such arms, projectiles, and material as cause unnecessary injury,” we can safely see that besides poison, poison-gas and bacterium the use of the means of injuring the enemy which causes at least the same or more injury is prohibited by international law. The destructive power of the atomic bomb is tremendous, but it is doubtful whether atomic bombing really had an appropriate military effect at that time and whether it was necessary….In this sense, it is not too much to say that the pain brought by the atomic bombs is severer than that from poison and poison-gas, and we can say that the act of dropping such a cruel bomb is contrary to the fundamental principle of the laws of war that unnecessary pain must not be given. Claims for damages of the sufferers. The plaintiffs allege that an individual has a claim in international law, since the right of the individual is exercised by the home government. However, if the purport is that the state exercise the right in international law in the citizen’s name as his agent for his sake, there is no such example in international law and there is no reason in international law to recognize this…. As understood from the above, there is no general way open to an individual who suffers damages from an illegal act of hostility in international law, to claim damages…. Waiver of claims. Article 19(a) of the Peace Treaty between the Allied Powers and Japan…provides that: “Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war…Accordingly, claims for compensation for damages caused to Japan by illegal acts of hostility, for example, are necessarily included. For the above reasons, the plaintiffs’ claims in this suit are ruled improper…and we can only dismiss the plaintiffs’ claims on the merits…. NOTES, COMMENTS, AND QUESTIONS If Japan, with her World War II record of law of war violations, had the atomic bomb, would she have used it on the United States? When examining the lawfulness of its use by the US, does Japan’s law of war record matter? Would employment of the hydrogen bomb against an enemy raise and exacerbate the same issues? The atom bombing of Hiroshima and Nagasaki remains


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not only a significant LOAC/IHL issue, but emotional and moral issues not likely to be settled soon. It should be noted that there still is no multi-national treaty banning the use on nuclear weapons. Should there be one? D. INDIVIDUAL BATTLEFIELD STATUS Every person on the battlefield has a status, and their status will generally dictate the protections that they are entitled to during a conflict. If you look at the back side of a military CAC card, you’ll note a certain Geneva Conventions Category. What category are you? What do you think that means? At USAFA you probably see military personnel, civilians, and contractors routinely throughout the day. Additionally, among others, there are cadets, captains, colonels, and general officers. There are department heads, professors, associate professors, assistant professors, and instructors. They all have some status. This status can dictate one’s authority, salary, influence, office location, and even the all-important parking space. Similarly, on the battlefield, and depending upon which status you have, it will determine your treatment—that’s if the enemy follows LOAC at all. Every person in enemy hands must have some status under international law. He is either a prisoner of war and, as such, covered by the Third Geneva Convention, a civilian covered by the Fourth Convention, or a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.42 This section will explore selected individual statuses in LOAC. 1) COMBATANTS Article 43.2 of AP I defines lawful combatants in international armed conflicts as members of the armed forces of a Party to a conflict (other than medical personnel and chaplains…), that is to say, they have the right to participate directly in hostilities. They essentially have a license to kill enemy combatants during times of armed conflict, and are entitled to prisoner of war (POW) status upon capture, which entitles combatants to many privileges. Consequently lawful combatants cannot be prosecuted for lawful acts of war in the course of military operations even if their behavior would constitute a serious crime in peacetime. Many categories of troops/soldiers/seaman, etc… contribute to the combat effort in ways that have little to do with actually firing weapons. There are cooks, administrative personnel, musicians, cadets at military academies, and so on. They are all nevertheless combatants, for they are entitled to fight.43 Lawful combatants are not combatants forever, however. They can certainly withdraw from hostilities not only by retiring [or demobilizing] and turning into civilians, but also by becoming hors de combat.44 Combatants may be attacked at any time during an armed conflict—there seems to be no direct limitation on the time or location on attacking combatants until they surrender or are otherwise hors de combat. The following case excerpt provides an illustration of the analysis.

42 Jean Pictet, ed., Commentary, IV Geneva Convention (Geneva: ICRC, 1958), 51. 43 Solis, supra note 26, at 187. 44 Infra., pg 39.


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UNITED STATES v. LINDH 212 F. Supp. 2d 541

(E.D. Va. 2002)

John Phillip Walker Lindh ("Lindh") is an American citizen who, according to the ten-count Indictment filed against him in February 2002, joined certain foreign terrorist organizations in Afghanistan and served these organizations there in combat against Northern Alliance and American forces until his capture in November 2001. The Indictment's allegations may be succinctly summarized. In mid-2001, Lindh attended a military training camp in Pakistan run by Harakat ul-Mujahideen ("HUM"), a terrorist group dedicated to an extremist view of Islam. After receiving several weeks of training, Lindh informed HUM officials that "he wished to fight with the Taliban in Afghanistan. Thus, in May or June 2001, he traveled from Pakistan into Afghanistan "for the purpose of taking up arms with the Taliban," eventually arriving at a Taliban recruiting center in Kabul, Afghanistan--the Dar ul-Anan Headquarters of the Mujahideen. On his arrival, Lindh presented a letter of introduction from HUM and advised Taliban personnel "that he was an American and that he wanted to go to the front lines to fight." While at the Dar ul-Anan Headquarters, Lindh agreed to receive additional and extensive military training at an al Qaeda training camp. He made this decision "knowing that America and its citizens were the enemies of Bin Laden and al-Qaeda and that a principal purpose of al-Qaeda was to fight and kill Americans." In late May or June 2001, Lindh traveled to a bin Laden guest house in Kandahar, Afghanistan, where he stayed for several days, and then traveled to the al Farooq training camp, "an al Qaeda facility located several hours west of Kandahar." He reported to the camp with approximately twenty other trainees, mostly Saudis, and remained there throughout June and July. During this period, he participated fully in the camp's training activities, despite being told early in his stay that "Bin Laden had sent forth some fifty people to carry out twenty suicide terrorist operations against the United States and Israel." As part of his al Qaeda training, Lindh participated in "terrorist training courses in, among other things, weapons, orientating, navigation, explosives and battlefield combat." This training included the use of "shoulder weapons, pistols, and rocket-propelled grenades, and the construction of Molotov cocktails." During his stay at al Farooq, Lindh met personally with bin Laden, "who thanked him and other trainees for taking part in jihad." He also met with a senior al Qaeda official, Abu Mohammad Al-Masri, who inquired whether Lindh was interested in traveling outside Afghanistan to conduct operations against the United States and Israel. Lindh declined Al-Masri's offer in favor of going to the front lines to fight. It is specifically alleged that Lindh swore allegiance to jihad in June or July 2001. When Lindh completed his training at al Farooq in July or August 2001, he traveled to Kabul, Afghanistan, where he was issued an AKM rifle "with a barrel suitable for long range shooting." Armed with this rifle, Lindh, together with approximately 150 non-Afghani fighters, traveled from Kabul to the front line at Takhar, located in Northeastern Afghanistan, where the entire unit was placed under the command of an Iraqi named Abdul Hady. Lindh's group was eventually divided into smaller groups that fought in shifts against Northern Alliance troops in the Takhar trenches, rotating every one to two weeks. He remained with his fighting group following the September 11, 2001 terrorist attacks, "despite having been told that Bin Laden had ordered the attacks, that additional terrorist attacks were planned, and that additional al Qaeda personnel were being sent from the front lines to protect Bin Laden and defend against an anticipated military response from the United States." Indeed, it is specifically alleged that Lindh remained with his fighting group from October to December 2001, "after learning that United States military forces and United States nationals had become directly engaged in support of the Northern Alliance in its military conflict with Taliban and al Qaeda forces."


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In November 2001, Lindh and his fighting group retreated from Takhar to the area of Kunduz, Afghanistan, where they ultimately surrendered to Northern Alliance troops. On November 24, 2001, he and the other captured Taliban fighters were transported to Mazar-e-Sharif, and then to the nearby Qala-i-Janghi (QIJ) prison compound. The following day, November 25, Lindh was interviewed by two Americans--Agent Johnny Micheal Spann from the Central Intelligence Agency (CLA) and another government employee. Later that day, it is alleged that Taliban detainees in the QIJ compound attacked Spann and the other employee, overpowered the guards, and armed themselves. Spann was shot and killed in the course of the uprising and Lindh, after being wounded, retreated with other detainees to a basement area of the QIJ compound. The uprising at QIJ was eventually suppressed on December 1, 2001, at which time Lindh and other Taliban and al Qaeda fighters were taken into custody by Northern Alliance and American forces. Following his capture, Lindh was interrogated, transported to the United States, and ultimately charged, among other things, in this district for conspiracy to murder nationals of the United States, including American military personnel and other governmental employees serving in Afghanistan following the September 11, 2001 terrorist attacks, in violation of 18 U.S.C. § 2332(b)(2). Lindh claims that this count in the indictment should be dismissed because, as a Taliban soldier, he was a lawful combatant entitled to the affirmative defense of lawful combatant immunity. Lawful combatant immunity, a doctrine rooted in the customary international law of war, forbids prosecution of soldiers for their lawful belligerent acts committed during the course of armed conflicts against legitimate military targets. Belligerent acts committed in armed conflict by enemy members of the armed forces may be punished as crimes under a belligerent's municipal law only to the extent that they violate international humanitarian law or are unrelated to the armed conflict. This doctrine has a long history, which is reflected in part in various early international conventions, statutes and documents. But more pertinent, indeed controlling, here is that the doctrine also finds expression in the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 ("GPW"), to which the United States is a signatory. Significantly, Article 87 of the GPW admonishes that combatants "may not be sentenced… to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts." GPW, art. 87. Similarly, Article 99 provides that "no prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed." GPW, art. 99. These Articles, when read together, make clear that a belligerent in a war cannot prosecute the soldiers of its foes for the soldiers' lawful acts of war. The inclusion of the lawful combatant immunity doctrine as a part of the GPW is particularly important here given that the GPW, insofar as it is pertinent here, is a self-executing treaty to which the United States is a signatory. It follows from this that the GPW provisions in issue here are a part of American law and thus binding in federal courts under the Supremacy Clause. This point, which finds support in the cases, is essentially conceded by the government. Moreover, the government does not dispute that this immunity may, under appropriate circumstances, serve as a defense to criminal prosecution of a lawful combatant. Importantly, this lawful combatant immunity is not automatically available to anyone who takes up arms in a conflict. Rather, it is generally accepted that this immunity can be invoked only by members of regular or irregular armed forces who fight on behalf of a state and comply with the requirements for lawful combatants. Thus, it is well-established that the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their


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belligerency unlawful. Ex Parte Quirin, 317 U.S. 1, 30-31 (1942). The GPW also reflects this distinction between lawful and unlawful combatants, with only the former eligible for immunity from prosecution. See GPW, art. 87, 99. Thus, the question presented here is whether Lindh is a lawful combatant entitled to immunity under the GPW. The starting point in the analysis of Lindh's immunity claim is recognition that the President has unequivocally determined that Lindh, as a member of the Taliban, is an unlawful combatant and, as such, may not invoke lawful combatant immunity. On February 7, 2002, the White House announced the President's decision, as Commander-in-Chief, that the Taliban militia were unlawful combatants pursuant to GPW and general principles of international law, and, therefore, they were not entitled to POW status under the Geneva Conventions. This presidential determination, according to the government, is significant, indeed decisive, because the President, as the "Commander in Chief of the Army and Navy of the United States," has broad constitutional power to issue such a determination. Moreover, in the current conflict, he has also been "authorized" by Congress "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 224 (2001). Thus, the government argues, the decision of the President to use force against the Taliban and al Qaeda, as endorsed by Congress, represents the exercise of the full extent of his constitutional presidential authority. It follows, the government contends, that the President's determination that Taliban members are unlawful combatants was made pursuant to his constitutional Commander-in-Chief and foreign affairs powers and is therefore not subject to judicial review or second guessing because it involves a quintessentially non-justiciable political question. This argument, while not without appeal, is ultimately unpersuasive. Because the consequence of accepting a political question argument is so significant--judicial review is completely foreclosed--courts must subject such arguments to searching scrutiny, for it is central to the rule of law in our constitutional system that federal courts must, in appropriate circumstances, review or second guess, and indeed sometimes even trump, the actions of the other governmental branches. At a minimum, this scrutiny requires careful consideration of whether the circumstances that trigger the application of the political question doctrine are present here. Thus, it is difficult to see, except at the highest level of abstraction, a textually demonstrable constitutional commitment regarding this issue. Moreover, it is difficult to see why the application of the GPW's lawful combatant immunity doctrine to Lindh's case involves a lack of judicially discoverable and manageable standards. Indeed, the contrary appears to be true. The presence of any remaining factors is also doubtful. To sum up briefly then, while it may be argued that some of the triggering circumstances for a political question are present to some degree here, others plainly are not and thus the government's political question argument is ultimately unpersuasive. Understandably and appropriately, therefore, courts have recognized that treaty interpretation does not implicate the political question doctrine and is not a subject beyond judicial review. This, however, does not end the analysis, for it remains important to determine the precise nature of judicial review that is appropriate here, including, in particular, what, if any, respect or effect should be afforded the President's determination that Lindh and the Taliban are not lawful combatants entitled to lawful combatant immunity. The answer to this question may be found both in settled case law and in sound principle. Thus, courts have long held that treaty interpretations made by the Executive Branch are entitled to some degree of deference. This result also finds support in the principles underlying the Chevron doctrine, which holds that deference to an agency's reasonable interpretation of an ambiguous statute is appropriate where the agency has been charged with administering the statute. The rationale of Chevron is that a statutory ambiguity is essentially a delegation of authority by Congress to the responsible agency to resolve the ambiguity. By analogy, treaty interpretation and application warrants similar Chevron deference to the President's interpretation of a treaty, as American treaty-makers may be


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seen as having delegated this function to the President in light of his constitutional responsibility for the conduct of foreign affairs and overseas military operations. It is important to recognize that the deference here is appropriately accorded not only to the President's interpretation of any ambiguity in the treaty, but also to the President's application of the treaty to the facts in issue. Again, this is warranted given the President's special competency in, and constitutional responsibility for, foreign affairs and the conduct of overseas military operations. It is also crucial to be precise regarding the nature of the deference warranted. Conclusive deference, which amounts to judicial abstention, is plainly inappropriate. Rather, the appropriate deference is to accord substantial or great weight to the President's decision regarding the interpretation and application of the GPW to Lindh, provided the interpretation and application of the treaty to Lindh may be said to be reasonable and not contradicted by the terms of the treaty or the facts. It is this proviso that is the focus of the judicial review here of the President's determination that Lindh is an unlawful combatant under the GPW. The GPW sets forth four criteria an organization must meet for its members to qualify for lawful combatant status: i. the organization must be commanded by a person responsible for his subordinates;

ii. the organization's members must have a fixed distinctive emblem or uniform recognizable at a distance;

iii. the organization's members must carry arms openly; and

iv. the organization's members must conduct their operations in accordance with the laws and customs of war.

Nor are these four criteria unique to the GPW; they are also established under customary international law and were also included in the Hague Regulations of 1907. See Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 (Hague Regulations). In the application of these criteria to the case at bar, it is Lindh who bears the burden of establishing the affirmative defense that he is entitled to lawful combatant immunity, i.e., that the Taliban satisfies the four criteria required for lawful combatant status outlined by the GPW. On this point, Lindh has not carried his burden; indeed, he has made no persuasive showing at all on this point. For this reason alone, it follows that the President's decision denying Lindh lawful combatant immunity is correct. In any event, a review of the available record information leads to the same conclusion. Thus, it appears that the Taliban lacked the command structure necessary to fulfill the first criterion, as it is manifest that the Taliban had no internal system of military command or discipline. As one observer noted, "there is no clear military structure with a hierarchy of officers and commanders while unit commanders are constantly being shifted around," and the Taliban's "haphazard style of enlistment… does not allow for a regular or disciplined army." Kamal Matinuddin, The Taliban Phenomenon: Afghanistan 1994-97 59 (1999). Thus, Lindh has not carried his burden to show that the Taliban had the requisite hierarchical military structure. Similarly, it appears the Taliban typically wore no distinctive sign that could be recognized by opposing combatants; they wore no uniforms or insignia and were effectively indistinguishable from the rest of the population. The requirement of such a sign is critical to ensure that combatants may be distinguished from the non-combatant, civilian population. Accordingly, Lindh cannot establish the second criterion.


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Next, although it appears that Lindh and his cohorts carried arms openly in satisfaction of the third criterion for lawful combatant status, it is equally apparent that members of the Taliban failed to observe the laws and customs of war. See GPW, art. 4(A)(2). Thus, because record evidence supports the conclusion that the Taliban regularly targeted civilian populations in clear contravention of the laws and customs of war, Lindh cannot meet his burden concerning the fourth criterion. In sum, the President's determination that Lindh is an unlawful combatant and thus ineligible for immunity is controlling here (i) because that determination is entitled to deference as a reasonable interpretation and application of the GPW to Lindh as a Taliban; (ii) because Lindh has failed to carry his burden of demonstrating the contrary; and (iii) because even absent deference, the Taliban falls far short when measured against the four GPW criteria for determining entitlement to lawful combatant immunity. NOTES, COMMENTS, AND QUESTIONS Do you agree? Are cadets combatants? Could Al Qaeda members lawfully attack and kill a USAFA cadet eating dinner at the Olive Garden? Could Al Qaeda lawfully attack and kill a military officer while on vacation in Paris? 2) POWs The 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GC III or GPW) further outlines the protections of enemy personnel by detaining powers. POWs are lawful combatants in enemy control during an “international armed conflict” between two signatories to the Geneva Conventions. There are many “rights” granted under GC III that come along with being a POW—if you’re ever captured in combat, you want to be classified as a POW! Moreover, individual soldiers can be held criminally responsible for violating such prisoner rights. For example, although GC III allows interrogation of POWs, an interrogator cannot threaten or subject a POW to harsh treatment for refusing to provide information. The detaining power must protect POWs from murder, mutilation, violence, torture, corporal punishment, sensory deprivation, collective punishment, and humiliation. Technically speaking, there can be no POWs in NIACs because nothing in LOAC that applies during NIAC provides for POW status, such status is only provided for by the law that applies in IAC. Common Article 3 provisions that govern NIACs do provide for humane treatment of all prisoners, however. The various criteria for POW status are contained in GC III, Article 4A (1) through (6). The Kassem trial excerpt illustrates the application of these criteria by an Israeli Court.

MILITARY PROSECUTOR v. OMAR KASSEM AND OTHERS45 Israel, Military Court sitting in Ramallah

April 13, 1969 The first of the accused pleaded that he was a prisoner of war, and similar pleas were made by the remaining defendants…. The second defendant…was prepared to testify on oath…He claimed that he belonged to the “Organization of the Popular Front for the Liberation of Palestine” and when captured was wearing military dress and had in his possession a military pass issued to him on behalf of the Popular Front, 45 Solis, supra note 26, at 240.


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bearing the letters J.T.F. [Popular Front for the Liberation of Palestine], my name and my serial number.”…. [W]e hold that we are competent to examine and consider whether the defendants are entitled to prisoner-of-war status, and if we so decide, we shall then cease to deal with the charge…. We shall now inquire into the kinds of combatants to whom the status of prisoners of war is accorded upon capture…. The principles of the subject were finally formulated in the Geneva Convention [III] of 12 August 1949…. We proceed on the assumption that it applies to the State of Israel and its armed forces; Israel in fact acceded to the Convention on 6 July 1951, Jordan did so on 29 May 1951.. Article 4A of this Convention defines all those categories of person who, having fallen into enemy hands, are regarded as prisoners of war…. Without a shadow of a doubt, the defendants are not, in the words of paragraph (1), Members of the armed forces of a Party to the conflict or members of militias or volunteer corps forming part of such armed forces’…. …[T]he Convention applies to relations between States and not between a State and bodies which are not States and do not represent States. It is therefore the Kingdom of Jordan that is a party to the armed conflict that exists between us and not the Organization that calls itself the Front for the Liberation of Palestine, which is neither a State nor a Government and dose not bear allegiance to the regime which existed in the West Bank before the occupation and which exists now within the borders of the Kingdom of Jordan. In so saying, we have in fact excluded the said Organization from the application of the provisions of paragraph (3) of Article 4 [of Geneva Convention III, regarding members of the armed forces with allegiance to an authority not recognized by the Detaining Power]. Paragraph (6) of Article 4 [leveés en masse] is also not pertinent, since the defendants are not inhabitants of a non-occupied territory 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 forces…. Another category of persons mentioned in the Convention are irregular forces, i.e., militia and volunteer forces not forming part of the regular national army, but set up for the duration of the war or only for a particular assignment and including resistance movements belonging to a party to the armed conflict, which operates within or outside their own country, even if it is occupied. To be recognized as lawful combatants, such irregulars must, however, fulfill the following four conditions: (a) they must be under the command of a person responsible for his subordinates; (b) they must wear a fixed distinctive badge recognizable at a distance; (c) they must carry arms openly; (d) they must conduct their operations in accordance with the laws and customs of war. Let us now examine whether these provisions of Article 4A, paragraph (2) [militias, other volunteer corps, and organized resistance movements], are applicable to the defendants and their Organization. First, it must be said that, to be entitled to treatment as a prisoner of war, a member of an underground organization on capture by enemy forces must clearly fulfill all the four above mentioned conditions and that the absence of any of them is sufficient to attach to him the character of a combatant not entitled to be regarded as a prisoner of war…. For some reason, however, the literature on the subject overlooks the most basic condition of the right of combatants to be considered upon capture as prisoners of war, namely, the condition that the irregular forces must belong to a belligerent party. If they do not belong to the Government or State for which they


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fight, then it seems to us that, from the outset, under current International Law they do not possess the right to enjoy the status of prisoners of war upon capture…. If International Law indeed renders the conduct of war subject to binding rules, then infringement of these rules are offenses, the most serious of which are war crimes. It is the implementation of the rules of war that confers both rights and duties, and consequently an opposite party must exist to bear responsibility for the acts of its forces, regular and irregular. We agree that the Convention applies to military forces (in the wide sense of the term) which, as regards responsibility under International Law, belong to a State engaged in armed conflict with another State, but it excludes those forces – even regular armed units – which do not yield to the authority of the State and its organs of government. The Convention does not apply to those at all. They are to be regarded as combatants not protected by the International Law dealing with prisoners of war, and the occupying Power may consider them as criminals for all purposes. The importance of allegiance of irregular troops to a central Government made it necessary during the Second World War for States and Governments-in-exile to issue declarations as to the relationship between them and popular resistance forces (see, e.g., the Dutch Royal Emergency Decree of September 1944). In fact, the matter of allegiance of irregular combatants first arose in connection with the Geneva Convention. The Hague Convention of 18 October 1907 did not mention such allegiance, perhaps because of the unimportance of the matter, little use being made of combat units known as irregular forces, guerrillas, etc., at the beginning of the century. In view, however, of the experience of two World Wars, the nations of the world found it necessary to add the fundamental requirement of the total responsibility of Governments for the operations of irregular corps and thus ensure that there was someone to hold accountable if they did not act in accordance with the laws and customs of war. In the present case, the picture is otherwise. No Governments with which we are in a state of war accepts responsibility for the acts of the Popular Front for the Liberation of Palestine. The organization itself, so far as we know, is not prepared to take orders from the Jordan Government, witness the fact that it is illegal in Jordan and has been repeatedly harassed by the Jordan authorities. The measures that Jordan has adopted against it have included the use of arms. This type of underground activity is unknown in the international community, and for this reason, as has been pointed out, we have found no direct reference in the relevant available literature to irregular forces being treated as illegal by the authorities to whom by the nature of things they should be subject. If these authorities look upon a body such as the Popular Front for the Liberation of Palestine as an illegal organization, why must we have to regard it as a body to which international rules relating to lawful bodies are applicable?.... Not every combatant is entitled to the treatment which, by a succession of increasingly humane conventions, have ameliorated the position of wounded members of armed forces. Civilians who do not comply with the rules governing “levée en masse” and have taken an active part in fighting are in the same position as spies. Similarly, combatants who are members of the armed forces, but do not comply with the minimum qualifications of belligerents or are proven to have broken other rules of warfare, are war criminals and as such are liable to any treatment and punishment that is compatible with the claim of a captor State to be civilised. By the introduction of additional distinctions between lawful and unlawful combatants, and combined application of the test of combatant and non-combatant character and of civilian and military status, it becomes possible to give far-reaching protection to the overwhelming majority of the civilian population of occupied territories and captured members of the armed forces. Within narrower limits even those categories of prisoners who are excluded from such privileged treatment enjoy the benefits of the standard of civilization. At least they are entitled to have the decisive


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facts relating to their character as non-privileged prisoners established in…judicial proceedings. Moreover, any punishment inflicted on them must keep within the bounds of the standard of civilization. From all the foregoing, it is not difficult to answer the submission of counsel for the defence that a handful of persons operating alone and themselves fulfilling the conditions of Article 4A(2) of the Convention may also be accorded the status of prisoners of war. Our answer does not follow the line of reasoning of learned counsel. [A] person or body of persons not fulfilling the conditions of Article 4A(2) of the Convention can never be regarded as lawful combatants even if they proclaim their readiness to fight in accordance with its terms. He who adorns himself with peacock’s feathers does not therefore become a peacock. What is the legal status of these unlawful combatants under international law? The reply…If an armed band operates against the forces of an occupant in disregard of the accepted laws of war…then common sense and logic should counsel the retention of its illegal status. If an armed band operates in search of loot rather than on behalf of the legitimate sovereign of the occupied territory, then no combatant or prisoner of war rights can be or should be claimed by its members. If we now consider the facts we have found on the evidence of the witnesses for the prosecution…we see that the body which calls itself the Popular Front for the Liberation of Palestine acts in complete disregard of customary International Law accepted by civilized nations. The attack upon civilian objectives and the murder of civilians in Mahne Yehuda Market, Jerusalem, the Night of the Grenades in Jerusalem, the placing of grenades and destructive charges in Tel Aviv Central Bus Station, etc., were all wanton acts of terrorism aimed at men, women and children who were certainly not lawful military objectives….Immunity of non-combatants from direct attack is one of the basic rules of the international law of war. The presence of civilian clothes among the effects of the defendants is, in the absence of any reasonable explanation, indicative of their intent to switch from the role of unprotected combatants to that of common criminals. Acts involving the murder of innocent people, such as the attack on the aircraft at Athens and Zurich airports, are abundant testimony of this. International Law is not designed to protect and grant rights to saboteurs and criminals. The defendants have no right except to stand trial in court and to be tried in accordance with the law and with the facts established by the evidence, in proceedings consonant with the requirements of ethics and International Law. We therefore reject the plea of the defendants as to their right to be treated as prisoners of war and hold that we are competent to hear the case in accordance with the charge-sheet…. NOTES, COMMENTS, AND QUESTIONS Do you agree with the Court’s holding that a prisoner must belong to a Party to the conflict to merit POW status? In answering, consider Geneva Convention III, Article 4A(2). Of what legal impact is it that Israel has not ratified the Additional Protocols? What if you capture an enemy prisoner in the battlefield on the way to an extraction point, but that prisoner is slowing you down and causing your food supply to be shortened. This is going to cause you to either miss your time hack or run out of food. What should you do with the prisoner?


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3) HORS DE COMBAT An example of the humanity principle in action can be found in LOAC’s prohibition against the killing of combatants if they are “hors de combat” – which basically means that they are now out of the fight due to surrender, incapacitation, or shipwreck. However, they have a duty to abstain from any hostile act and cannot evade capture. Combatants can become hors de combat either by choice (through a lying down of arms and surrendering) or by force of circumstance (as a result of getting wounded, sick or shipwrecked.) A combatant who is hors de combat and falls into the hands of the enemy is in principle entitled to the privileges of a prisoner of war—the same as if a combatant were to be captured by the enemy. NOTES, COMMENTS, AND QUESTIONS If a wounded enemy soldier is lying on the ground after being shot and attempts to crawl away during a firefight, can you fire upon said enemy soldier? 4) CIVILIANS Civilians are simply individuals who are not members of the armed forces, but the issue gets a bit thorny when they decide to engage in sporadic acts of violence during armed conflicts. Importantly, these acts by themselves do not turn civilians into combatants. Instead, Article 51 of AP I specifically outlines that they remain civilians but can be targeted while “directly participating” in hostilities. Persons participate directly in hostilities when they carry out acts, which aim to support one party to the conflict by directly causing harm to another party, either directly inflicting death, injury or destruction, or by directly harming the enemy's military operations or capacity. If and for as long as civilians carry out such acts, they are directly participating in hostilities and lose their protection against attack. Examples of causing military harm to another party include capturing, wounding or killing military personnel; damaging military objects; or restricting or disturbing military deployment, logistics and communication, for example through sabotage, erecting road blocks or interrupting the power supply of radar stations. Interfering electronically with military computer networks (computer network attacks) and transmitting tactical targeting intelligence for a specific attack are also examples. The use of time-delayed weapons such as mines or booby-traps, remote-controlled weapon systems such as unmanned aircraft, also "directly "causes harm to the enemy and, therefore, amounts to direct participation in hostilities.46 This means if a civilian is paid by an insurgent group (while the U.S. is engaged in an armed conflict with various insurgent groups) to fire a mortar into a U.S. Army base, that civilian loses protection from being targeted during the actual firing and immediately after, as well as during preparations immediately before firing. In this example, U.S. forces can therefore legitimately target this civilian during these actions, but cannot target him for killing the next day. U.S. forces could, however, detain the civilian the next day and try him for war crimes under domestic or international law. Why can’t the US simply target this individual a day or two after the event? Because distinction prohibits it! Belligerents can only kill combatants OR those 46 http://www.icrc.org/eng/resources/documents/faq/direct-participation-ihl-faq-020609.htm (last visited 1 June 2013).


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civilians who are “directly participating in hostilities.” Unfortunately, due to the nature of modern warfare, the analysis becomes even more complex as the below commentary explains. So what about Al Qaeda or the Taliban (former government of Afghanistan), or other armed groups which do not belong to a state? What’s their status? Unfortunately, they often look and behave like civilians (for example, the Taliban in Afghanistan blend into the civilian population intentionally) and therefore make it quite difficult for U.S. and coalition forces to determine who is who – that is, to comply with the principle of distinction. Therefore, in order to place someone on a target list in order to hunt them down and kill them, even if not engaged in “direct participation in hostilities”, U.S. intelligence gatherers have to piece together evidence that the individual is a member of a hostile armed group; i.e., in a “continuous combat function.” This “evidence” could consist of intelligence that the individual is planning and/or committing attacks; attending meetings of known hostile combatants, possesses sophisticated weapons known to belong to hostile forces, possessed large quantities of foreign money, and so on. The analysis is very subjective when it comes to this issue, and the specific criteria are largely considered sensitive information. Moreover, established members of these types of armed groups that are considered to be in a continuous combat function, which fail to follow the below criteria are considered “unlawful combatants” and are not entitled to either combatant immunity for their violent acts during conflict nor entitled to POW treatment if captured. As discussed in the Lindh and Kassem cases, in order for members of organized resistance movements (and even members of armed forces) to be considered lawful combatants, they must adhere to the four following criteria: 1) have a responsible command structure; 2) wear a fixed distinctive insignia recognizable at a distance (the insignia must be distinguishable from the general civilian population); 3) carry their arms openly; and 4) conduct their own operations in accordance with LOAC.47 But even if enemy fighters don’t comply with this rule of combatancy, ALL detainees are entitled to humane treatment pursuant to Common Article 3 of the Geneva Conventions, which is considered customary international law. So, even though individuals at Guantanamo Bay, for instance, may not be entitled to POW protections for not complying with the requirements of a lawful combatant upon being captured, they all must be afforded the protections provided under Common Article 3. 5) THE WOUNDED, SICK, AND SHIPWRECKED48 LOAC grants special protection to the wounded, sick, shipwrecked, and those who care for them. Because the wounded, sick, and shipwrecked are no longer engaged in hostilities and not in a position to defend themselves, international law requires they be cared for. Those designated medical personnel who care for them are granted protections because they also are not engaged in hostilities but are undertaking a humanitarian enterprise.

47 GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, opened for signature July 27, 1929, 47 Stat. 2021, art. 4(a)(2). 48 For more detailed information, See generally http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule109 (last visited 1 June 2013).


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Under the Geneva Conventions and many other instruments of international law, parties to any armed conflict must take all possible measures to search for and collect the wounded, sick, or shipwrecked. The military may even appeal to the local civilian population to assist in the search for, or care of, the wounded and sick. Conversely, a civilian may not be abused or charged with aiding the enemy for having offered medical assistance to the wounded. The Geneva Conventions require that all wounded and sick be given medical treatment as if they were the party’s own nationals. There can be no distinction between friend or foe in this regard. The level of treatment should be based on grounds of medical priority only. 6) MEDICAL AND RELIGIOUS PERSONNEL Medical and religious personnel are protected persons because of their humanitarian missions. They may not be attacked and must be allowed to carry out their mission. In return for their protection, the law requires they not engage in hostile operations. Medical personnel are those exclusively assigned to treat, search for, and transport the wounded and sick. They can carry side arms for self-defense or defense of the wounded and sick without running the risk of losing their protected status. Religious personnel include those attached to the military’s chaplaincy. They also must not engage in hostile acts. If they do, they risk losing their protected status if they commit acts harmful to the enemy outside of their humanitarian functions. Although not forbidden by international law, some services do prohibit chaplains from carrying arms. If medical or religious personnel fall into the hands of the enemy, they do not become POWs; instead, they become retained persons. The enemy must retain them only as long as the medical or spiritual needs of the detained combatants require and then release them to their respective governments. IV. OBEDIENCE TO ORDERS/COMMAND RESPONSIBILITY Orders are essential to military good order and discipline. It’s one of the features of military life that distinguishes military personnel from civilians. If a military member doesn’t follow a lawful military order, then that person can be sent to jail under the military justice system….49 That’s a pretty good incentive to follow an order issued by a superior officer. The consequences are not the same for a Burger King employee that fails to follow the direction of a superior that orders him to clean the bathroom, and he refuses to do so. Stakes are clearly higher in the military, and following orders in the military is critical in so many ways. So, if a superior officer orders a military cook to help secure the perimeter of a military installation while under attack, then that is an order the cook probably should follow, even though that’s not his typical duty. However, following orders blindly is not something the law requires. In fact, if a member receives an order that he believes to be unlawful, the law requires that he not follow it. Having said that, there is an inference of lawfulness regarding military orders and it is disobeyed at the peril of the subordinate member. An example would be if you are guarding a detainee, and a superior officer orders you to “torture” the detainee—torture is against international and domestic law, and so you should not torture the detainee. If you do, then you may still be held liable even though you were “simply following orders.”

49 See Art 90, MCM for detail explanation of a lawful military order.


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UNITED STATES v. CALLEY United States Court of Military Appeals

48 C.M.R. 19 (1973) Lieutenant Calley was the 1st platoon leader in C Company, 1st Battalion, 20th Infantry, 11th Light Infantry Brigade, as he had been since he arrived in the Republic of Vietnam in December 1967. Captain Medina, commander of C Company, was notified that his company would be engaged in an upcoming offensive action. He was briefed at Task Force headquarters, then called his officers and men together on the evening of 15 March 1968 for a unit briefing. The content of the briefing essentially was that the next morning the unit would engage the 48th VC Battalion, from whom it could expect heavy resistance and by whom it would be outnumbered by more than two to one. C Company was to be inserted by airlift to the west of My Lai, sweep through it, and continue toward My Lai. Despite expectations of heavy resistance based upon specific intelligence briefings, C Company moved through My Lai without receiving any fire. The only unit casualty on 16 March 1968 was one self-inflicted wound. No mines or booby traps were detonated. Lead elements of the company had no occasion to call for mortar fires from the weapons platoon; the forward observer with C Company had no occasion to call for any fires from artillery units in direct support. In My Lai, the unit encountered only unarmed, unresisting, frightened old men, women, and children, and not the expected elements of the 48th Viet Cong Battalion. The villagers were found in their homes eating breakfast and beginning their morning chores. This formation quickly became disorganized. Thick vegetation made it difficult for the troops to see who was near, and for the squad leaders and Lieutenant Calley, to maintain visual contact with their men and with each other. However, the principal reason why the formation broke down and leaders lost control was the discovery of unresisting, unarmed old men, women and children instead of the expected enemy. The platoon had not been specifically instructed what to do in this event. No civilian collection point had been designated; and the first platoon was supposed to move through the village quickly, not to return to the rear with detainees. Some villagers were shot by some members of the first platoon when it first entered the subhamlet. Some members collected groups of Vietnamese, without knowing what to do with them, and others stopped to kill livestock. The platoon assault formation became a meandering troop. Some of the villagers rooted out of their homes were placed in a group guarded by PFC Paul Meadlo and PFC Dennis Conti. PFC Dursi, who was about fifteen feet from PFC Meadlo watching his own group of Vietnamese, saw Lieutenant Calley come onto the trail and heard him ask Meadlo "if he could take care of that group." A couple of minutes later the appellant returned and, as Dursi remembered, yelled to Meadlo, "why haven't you wasted them yet? PFC Dursi turned and started to move his group down the trail when he heard M-16 fire from his rear. PFC Conti recounted that Lieutenant Calley told him and Meadlo "To take care of the people," left, and returned: "Then he came out and said, 'I thought I told you to take care of them.' Meadlo said, 'We are. We are watching them' and he said 'No, I mean kill them.'" Conti testified that he saw Lieutenant Calley and Meadlo fire from a distance of ten feet with M-16 rifles on automatic fire into this group of unarmed, unresisting villagers. Of the several bases for his argument that he committed no murder at My Lai because he was void of mens rea, appellant emphasized most of all that he acted in obedience to orders.


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Whether appellant was ever ordered to kill unresisting, unarmed villagers was a contested question of fact. The findings of a court-martial being in the nature of a general verdict, we do not know whether the court found that no such orders were given or, alternatively, concluded that the orders were given but were not exculpatory under the standards given to them in instructions. Responding to a question during direct examination asking why he gave Meadlo the order, "If he couldn't get rid of them to 'waste them'", Lieutenant Calley replied, "Because that was my order. That was the order of the day, sir." The appellant stated he received that order from Captain Medina, "The night before in the company briefings, the platoon leaders' briefing, the following morning before we lifted off, and twice there in the village." Lieutenant Calley related what he remembered of Captain Medina's remarks to the company at the evening briefing prior to the My Lai operation: "He [Medina] started off and he listed the men that we had lost, . . . We were down about 50 percent in strength, and that the only way we would survive in South Vietnam would be to -- we'd have to unite, start getting together, start fighting together, and become extremely aggressive and we couldn't afford to take anymore casualties, and that it was the people in the area that we had been operating in that had been taking the casualties on us, and that we would have to start treating them as enemy and you would have to start looking at them as enemy, . . . We were going to start at My Lai. And we would have to neutralize My Lai completely and not to let anyone get behind us, and then we would move into My Lai and neutralize it and make sure there was no one left alive in My Lai and so on until we got into the Pinkville area, and we would completely neutralize My Lai -- I mean My Lai which is Pinkville. He said it was completely essential that at no time that we lose our momentum of attack because the other two companies that had assaulted the time in there before had let the enemy get behind him or he had passed through enemy, allowing him to get behind him and set up behind him, which would disorganize him when he made his final assault on Pinkville. It would disorganize him, they would lose their momentum of attack, start taking casualties, be more worried about their casualties than their mission, and that was their downfall. So it was our job to go through destroying everyone and everything in there, not letting anyone or anything get behind us and move on into Pinkville, sir." Appellant further recalled Captain Medina' saying that "the area had been completely covered by PSYWAR operations; that all civilians had left the area and that there was no civilians in the area and anyone there would be considered enemy," and that the unit had "political clearance to destroy and burn everything in the area." Lieutenant Calley stated that at a platoon leaders' briefing later in the evening Captain Medina reemphasized "that under no circumstances would we let anyone get behind us, nor would we leave anything standing in these villages." The next morning at LZ Dottie, according to appellant, he was told by Captain Medina "to hang on to some of the Vietnamese in case we encountered a mine field," and "that everybody in that area would be the enemy and everyone there would be destroyed, all enemies would be destroyed." Lieutenant Calley testified that during his movement through My Lai he received and made several radio transmissions to Captain Medina. When he reached the eastern part of the village, Captain Medina called to ask what he was doing. Appellant continued: "I told him I had some bunkers up here to check out -- that I wanted to check, and that I had that small portion of the hamlet to the south-east, and also there was still a lot of enemy personnel I still had with me. . . . he told me to hurry up and get my people moving and get rid of the people I had there that were detaining me." His remembrance of Captain Medina's reply to his explanation of what was slowing him down was the specific order, "to waste the Vietnamese and get my people out in line, out in the position they were supposed to be."


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On cross examination Lieutenant Calley indicated some confusion as to when he first saw the Vietnamese who were slowing his progress. He also admitted that he didn't describe these people to Captain Medina, except perhaps as Vietnamese or VC, and that he knew these people were slowing him down because "anytime you are moving Vietnamese people, you will be moving slowly." Lieutenant Calley denied knowing if any of the persons detained by his platoon were women and children, and claimed to have discriminated between sexes only when he stopped Dennis Conti from molesting a female. Captain Medina, who was called as a witness at the request of the court members, gave a different version of his remarks to the company on the eve of the operation: "The briefing that I conducted for my company was that C Company had been selected to conduct a combat assault operation onto the village of My Lai beginning with LZ time 0730 hours on the morning of the 16th of March, 1968. I gave them the enemy situation, intelligence reports where the 48th VC Battalion was located in the village of My Lai. I told them that the VC Battalion was approximately, numbered approximately 250 to 280 men and that we would be outnumbered approximately two to one, and that we could expect a hell of a good fight and that we probably would be engaged. I told them that even though we were outnumbered that we had a double coverage of gunships that were being provided and that the artillery was being placed onto the village and that this would help make up for the difference in ratio between the enemy forces and our company. I told the people that this would give them a chance to engage the 48th VC Battalion, that the 48th VC Battalion was the one that we had been chasing around the Task Force Barker area of operation, and that we would finally get a chance to engage them in combat, and that we would be able to destroy the 48th VC Battalion . . . . The information that I gave also in the briefing to the company was that the 48th VC Battalion was located at the village of My Lai, and that the intelligence reports also indicated that the innocent civilians or noncombatants would be gone to market at 0700 hours in the morning. That this was one reason why the artillery preparation was being placed onto the village at 0720 hours with the combat assault LZ time 0730 hours. I did not make any reference to the handling of prisoners." Captain Medina recalled that someone at the company briefing asked, "Do we kill women and children," and that his reply was, "No, you do not kill women and children. You must use common sense. If they have a weapon and are trying to engage you, then you can shoot back, but you must use common sense." He remembered instructing during the briefing: ". . . that Colonel Barker had told me that he had permission to destroy the village of My Lai , and I clarified this by saying to destroy the village, by burning the hootches, to kill the livestock, to close the wells and to destroy the food crops." Captain Medina conceded mentioning to Lieutenant Calley before lift-off "to utilize prisoners to lead the elements through the mine fields." Any congruence between their testimony in regard to communications between them ends here. Although Captain Medina acknowledged that he called the first platoon leader to inform him of the implementation of a contingency plan and so to spread his men out, he denied that Lieutenant Calley ever told him that he had bunkers to check out or that he was having difficulty in handling civilians or that the first platoon had encountered a large number of civilians. Captain Medina further disclaimed that he ever gave an order to the appellant "to move civilians out of the way or get rid of them." He stated he was never informed that the first platoon had gathered women and children and did not know the circumstances under which the inhabitants of My Lai were killed. He came to the pile of bodies at the trail after the killings. If the members found that appellant fabricated his claim of obedience to orders, their finding has abundant support in the record. If they found his claim of acting in obedience to orders to be credible, he would nevertheless not automatically be entitled to acquittal. Not every order is exonerating. The trial judge's instructions under which he submitted the issues raised by evidence of obedience to orders were entirely correct. After fairly summarizing the evidence bearing on the question, he


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correctly informed the members as a matter of law that any order received by appellant directing him to kill unresisting Vietnamese within his control or within the control of his troops would have been illegal; that summary execution of detainees is forbidden by law. A determination of this sort, being a question of law only, is within the trial judge's province. The instructions continued: "The question does not rest there, however. A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders. "The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful." The members were told that if they found beyond reasonable doubt that appellant actually knew the orders under which he asserted he operated were illegal, the giving of the orders would be no defense; that the final aspect of the obedience question was more objective in nature, namely, that if orders to kill unresisting detainees were given, and if appellant acted in response thereto being unaware that the orders were illegal, he must be acquitted unless the members were satisfied beyond reasonable doubt that a man of ordinary sense and understanding would have known the orders to be unlawful. Judge Kennedy's instructions were sound and the members' findings correct. An order of the type appellant says he received is illegal. Its illegality is apparent upon even cursory evaluation by a man of ordinary sense and understanding. A finding that it is not exonerating should not be disturbed. We find no impediment to the findings.50 NOTES, COMMENTS, AND QUESTIONS The defense of obedience to orders (i.e., I was just following orders) didn’t work out for Lt Calley—history has shown it rarely does. Put yourself in the place of a Serbian soldier ordered to execute a Bosnian Muslim by firing squad. The Serbian soldier refuses the order to do so, and the superior approaches him, and says, “You can kill him, or you can give me your weapon and line up next to him.” Would you disobey the order at the risk of losing your life? The Serbian Soldier eventually admitted to killing approximately 70 innocent civilians, but said that if he hadn’t, he too would have been killed. He was nonetheless convicted of crimes against Humanity. See the “Soldier’s Duty to Die” case, PROSECUTOR v. DRAŽEN ERDEMOVIĆ (ICTY). Another form of criminal liability for military personnel, especially in combat operations, is the legal principle of command responsibility. Along with being responsible for their own

50 Captain Medina was later acquitted for charges brought against him.


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violations of the law, commanders can be also responsible for their subordinates’ violations that they are aware of, or should be aware of based on the totality of circumstances. This, of course, is a significant point. If you are aware that your subordinates are committing violations and take no action—even if you did not order the violations, or even if you do not condone them—you can be held criminally responsible unless you stop them or, if they are completed acts, take prompt steps to try offenders. Perhaps the principle of command responsibility is best articulated in Article 28 of the Rome Statute. It provides, in part, that: A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: a. That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and b. That military commander or person 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 authorities for investigation and prosecution. As an officer and leader, you are required to enforce LOAC. Moreover, you cannot close your eyes to violations; you must take care to “know” what’s going on in your command. As an officer and leader, you are also expected to control the actions of those under your command. If you do not, history has shown that you may be held personally accountable. This standard was utilized in the war crimes case titled In re Yamashita to determine that a Japanese commander who did nothing to prevent war crimes by his troops was nevertheless criminally culpable. It should be noted however that while noteworthy for its holding regarding command responsibility, Yamashita is widely critiqued due to allegations of “victor’s justice.” NOTES, COMMENTS, AND QUESTIONS You may recall that Army Private Lyndie England was convicted and sentenced for posing for the infamous photos of torture at Abu Ghraib, while her superiors ducked meaningful responsibility. Should the General who was in charge of operations at Abu Ghraib been held criminally responsible also? Why/why not? V. WHY FOLLOW LOAC? If one serves in combat operations, and hears of the enemy not following LOAC by way of beheading captured friendly forces, and killing civilians, and so on, one might be inclined to think, “why should we follow LOAC” when our enemy isn’t? This sentiment can be compounded by the “fog of war” that undoubtedly inflicts many in combat operations and also tends to dehumanize the enemy. And the question of why follow international law remains among the most perplexing questions in international law. One scholar has even asserted that “almost all nations observe almost all principles of international law and almost all of their


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obligations almost all of the time.”51 Some also maintain LOAC is a contradiction in terms and essentially hinders effective combat operations. However, most nations that honor and respect the rule of law would likely argue that in reality LOAC helps secure the prompt and complete submission of the enemy with the least possible expenditure of manpower and resources. For instance, LOAC serves to: 1) Limit the effects of the conflict (reduce damages and casualties), 2) Protect combatants and noncombatants from unnecessary suffering, 3) Safeguard fundamental rights of combatants and noncombatants, 4) Prevent the conflict from escalating, and 5) Makes it easier to restore peace when the conflict has ended because following LOAC earns the respect of the local population. There are also practical and compelling military reasons why, as a leader, you should ensure that your subordinates do not violate LOAC. Unnecessary killing and devastation only increases enemy determination, and hampers his willingness to surrender, which could lead to greater friendly casualties—think about the Abu Ghraib incident, or the U.S. Marines urinating on dead enemy fighters in Afghanistan. Many have speculated that these types of abuses have also energized the enemy. Do you think the perceived illegality in many parts of the world regarding U.S. drone operations in Pakistan have helped or diminished the U.S. cause against the fight against terrorism? Additionally, LOAC violations bring forth the specter of criminal prosecution. The Uniform Code of Military Justice (UCMJ), DoD Directive 2311.01E (DoD Law of War Program), and Air Force Policy Directive 51-4 (Compliance with the Law of Armed Conflict) mandate compliance with LOAC. Failure to abide by these principles subjects the violator to criminal process. Violations of LOAC during conflict impact not only the individual, but reflect upon the U.S. military as an institution. Finally, imagine what would happen if the U.S. did decide to begin applying standards of LOAC loosely. What would our allies think? What if the U.S. needed to form another coalition in the future? Would other states be inclined to be “in bed” with a state that regularly violates major principles of international law? Probably not, and taking the high road on this issue almost always leads to honorable results and a more professional military. NOTES, COMMENTS, AND QUESTIONS Would you follow LOAC if the enemy wasn’t? Would you kill an enemy fighter to put him “out of his misery”(mercy killing)? Or, would you speak up if you witnessed an enemy prisoner being tortured? You will never really know until you are actually put in the situation! But, you also know what will get you prosecuted! You may have to make these choices someday, will you be ready?

51 Harold Hongju Koh, WHY DO NATIONS OBEY INTERNATIONAL LAW? 106 Yale L.J. 2599 1 (1997).

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