A Dangerous Guessing Game Disguised as Enlightened Policy: United States Law of War Obligations During Military Operations Other Than War

• Author: Major Timothy P. Bulman
• Pages: 03

152 MILITARY LAW REVIEW [Vol. 159

A DANGEROUS GUESSING GAME DISGUISED AS ENLIGHTENED POLICY: UNITED STATES LAW OF WAR OBLIGATIONS DURING MILITARY

OPERATIONS OTHER THAN WAR

MAJOR TIMOTHY P. BULMAN1

I. Introduction

Imagine it is the year 2010. United States military forces are invited to the tiny island state of Andar to help quell an insurgency and restore peace and democracy. Acting unilaterally and following a bilateral security agreement, U.S. forces deploy to Andar and immediately commence patrolling in and around the capital city of Tamir.

During the third night of patrols, a firefight erupts on the outskirts of Tamir pitting U.S. forces against the insurgents. The skirmish results in one U.S. soldier being killed and three more wounded. United States forces capture ten heavily armed insurgents wearing distinctive rebel uniforms. After receiving advice from his staff judge advocate, the U.S. commander transfers all of the insurgents to local law enforcement authorities. Once in the hands of the Andarians, the government indicts the insurgents under the criminal laws of Andar.

Less than thirty days later, a local court tries and convicts the insurgents for murder and other terrorist acts stemming from the incident with the U.S. forces. Ten days later, after denial of a direct appeal to the president of Andar for clemency, all ten rebels are publicly executed by firing squad in the capital city. United States forces attend, but do not participate in, the execution.

II. The Issues

This article answers four primary questions. First, is it possible that current U.S. policy regarding application of the law of war to Military Operations Other Than War will ripen into customary international law binding on the United States? Second, if the U.S. law of war policy has attained the status of customary international law, what is the significance for the United States? Third, are there any shortcomings in current U.S. policy regarding applying the law of war to Military Operations Other Than War? Fourth, should any changes be made to current U.S. policy that applies the law of war to Military Operations Other Than War?

Although, concededly, the introduction depicts a highly provocative and improbable scenario, it is merely intended to illustrate a single point: the law of war2 plays a profound role in regulating military conduct during Military Operations Other Than War.3 This is not surprising considering that the law of war was originally designed to apply to international armed

conflict, not internal insurgencies, civil wars, peacekeeping operations, or humanitarian missions.4

This article examines the U.S. policy of applying the law of war to Military Operations Other Than War. To facilitate the examination, the article first discusses the meaning and continuing importance of customary international law. In particular, it focuses on both the potential consequences of states making unilateral resolutions and the renewed vitality of customary international law in the development of the law of war. Next, the article addresses the U.S. law of war policy in Military Operations Other Than War. After examining U.S. policy, the article turns to recent U.S. practice in Military Operations Other Than War, ranging from Operation Urgent Fury in Grenada to Operation Joint Endeavor in the former Yugoslavia. The article then analyzes the significance of these different operations and explains their interrelationship.

III. Customary International Law

1. Traditional View of Customary International Law

   1. International Approach

      States create customary international law by following a general and consistent practice, which is motivated by the conviction that international law requires that conduct.5 To form customary international law, states must meet a two-prong test.6 The first prong is an act or actual practice of states. The second prong is the belief by states that they are acting under a legal obligation, also known as opinio juris.7

      State practice is the most concrete element of customary international law.8 To become binding, the practice must be consistent, settled, constant, and uniform, but need not be universal.9 Accordingly, there is no precise

      formula to indicate how widespread a practice must be before it evolves into customary international law. It should, however, reflect wide acceptance among the states involved in the relevant activity.10 In some instances, a practice followed by a few states can create a rule of customary international law, if there is no practice that conflicts with the rule.11

      The key to understanding how customary international law is formed lies in the distinction between the concepts of "custom" and "usage."12 As

      a term of art, "custom" requires a clear and continuous habit of doing certain acts under the conviction that they are obligatory under international law (opinio juris).13 In contrast, "usage" refers to a habit of doing certain acts without a conviction that the conduct is required under international law.14 A practice initially followed by states as a matter of courtesy, habit, or policy may evolve into international law when the states generally come to believe that they are legally obligated to comply with it.15 Determining when state practice has ripened into binding customary international law has never been easy to objectively quantify.16 Rather, the developmental process depends on subjective interpretations of the facts and motives of state officials.17

   2. American Judicial Treatment of Customary International Law

      The United States Constitution does not expressly recognize customary international law as a source of domestic law.18 As early as 1815, however, the United States Supreme Court acknowledged that the law of nations was a "great source" of law.19 In 1900, the Supreme Court unequivocally pronounced that "international law is part of our law."20

      To determine the scope of customary international law, the Supreme Court looked to the customs and usages of civilized nations as evidenced by the works of jurists and commentators.21 In Filartiga v. Pena-Irala,22 the Second Circuit interpreted these earlier Supreme Court decisions to mean that federal courts must analyze international law "not as it was in 1789, but as it has evolved and exists among the nations of the world

      today."23 Thus, under U.S. jurisprudence, customary international law is ever-changing.

   3. Emerging Trends In The Development of Customary International Law

      1. Unilateral Acts Of States

         A state's unilateral act may create, change, or modify customary international law.24 The Permanent Court of International Justice [hereinafter World Court] first recognized this principle in the Eastern Greenland case.25 The case involved a dispute between the Royal Danish government and the Royal Norwegian government concerning the legal status of certain territories in Eastern Greenland.26 The dispute arose after the Norwegian foreign minister repeatedly told his Danish counterpart that Norway would not contest Denmark on the question of Denmark's sovereignty over Greenland.27 At no time, however, did the Norwegian official declare that Norway was acting under any perceived legal obligation to refrain from occupying Greenland.

         The issue before the court was whether the statements made by the Norwegian official created an obligation binding under international law that Norway must honor.28 Notwithstanding the absence of an expression of opinio juris by the Norwegian minister, the court concluded that his statements created a legally binding obligation on the Norwegian government.29 Consequently, Norway was estopped30 from acting contrary to its declared intent of acquiescing in Danish sovereignty over Greenland.31

         The Eastern Greenland case of 1933 is significant to the U.S. law of war policy of 1998. The decision demonstrates that an international court might enforce a state's official pronouncements, even if the state did not intend to reflect opinio juris.

         Over forty years later, the International Court of Justice renewed the significance of unilateral acts by states in Nuclear Tests.32 That case involved a dispute between the government of New Zealand and the French government concerning the legality of atmospheric nuclear tests conducted by France in the South Pacific.33 New Zealand asked the court to hold that French officials' statements about the halting of nuclear testing in the South Pacific prohibited France, under international law, from resuming nuclear testing.34 The court remarked:

         It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the decl

         ration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.35

         The Nuclear Tests case significantly affects the consequences of uni-lateral acts by states. First, and most importantly, the court underscored the potential legal dangers for states that issue unilateral declarations and then subsequently repudiate them. The court stressed that one of the basic governing principles of legal obligations is good faith.36 As such, "interested states may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected."37 Second, for a unilateral statement to have legal effect, the statement does not need to be addressed to a particular state, or be manifestly accepted by any other states.38 Third, the court created a critical...