INTERNATIONAL HUMNANITARIAN LAW PRIMER Professor W. Chad Austin Major Amer Mahmud

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1 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 (last visited 1 June 2013). 3 U.N. Charter, Art Sean D. Murphy, Principles of Inaternational law 439 (2010). 13-1

2 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 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 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 (Dec. 14, 1974). 9 U.N. Charter, Art The ICJ was created as the judicial organ of the United Nations, and it sits in the Hague, Netherlands. 13-2

3 CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO 11 (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 Cooperation 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 (last visited 1 June 2013). 13-3

4 (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 nonintervention 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 13-4

5 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 selfdefense 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. 13-5

6 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 subjectmatter 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 (2006), we may decide whether the government has followed the proper procedures, whether the organization is foreign, 13-6

7 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? 13-7

8 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 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. NOTES, COMMENTS, AND QUESTIONS 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 (last visited 1 June 2013). 13-8

9 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 CRISIS 13 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. NOTES, COMMENTS, AND QUESTIONS 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 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 (last visited 1 June 2013). 13-9

10 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. NOTES, COMMENTS, AND QUESTIONS 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 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

11 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 selfdefense 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 (2011)

12 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 (last visited 1 June 2013). 19 For a more comprehensive reading on jus ad bellum, see Yoram Dinstein, War, Aggression, and Self-Defense (5 th ed. 2011). 20 MICHAEL HOWARD, ET AL, EDS. THE LAWS OF WAR 13 (1994). 21 Murphy, supra note 4, at

13 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 (last visited 4 June 2013)

14 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 E, May 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 (last visited 1 June 2013). 26 Discussion of Human Rights Law is beyond the scope of this Chapter

15 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 HORSES 27 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)

16 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 13-16

17 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 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

18 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 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 INCIDENT 32 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 During the Iran-Iraq war ( ) 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 Id. at Art Solis supra note 26, at

19 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 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 T at para. 180 (3 Mar 2000). 34 Prosecutor v. Galic, IT A at para. 54 (2006). 35 Id. at para Michael Walzer, Arguing About War 61 ((2004)

20 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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