Preface

• Pages: XIII

Andru E. Wall When an international group of military officers, judges, political scientists, philosophers, historians and lawyers gathered at the United States Naval War College in early August 2001 to discuss the legal and ethical lessons to be learned from NATO's Kosovo campaign, no one could have imagined the horrific attacks that would take place in the United States just one month later. Much of the discussion centered on whether Operation Allied Force represented a new kind of war-what many term humanitarian intervention-or simply an aberration with limited lessons for the future. Some suggested that Kosovo was nothing like the battlefields of the future would be, and so the lessons to be gleaned would be of limited use.

There is no question that the global war on terrorism that the United States and its allies throughout the world are actively engaged in at the time of this writing is dramatically different from Operation Allied Force. Most significantly, the war on terrorism is a conflict fought primarily against non-State actors and the States that aid, harbor, or support them, while the war over Kosovo was more traditionally fought against a sovereign State. Some scholars mused over whether humanitarian intervention wasn't really war at all, yet it was, classically stated, a matter of politics by another means. A group of sovereign States (NATO) used military force in order to impose their political will (the cessation of the oppression of Kosovar Albanians) on another sovereign State (Serbia).

The goal of the colloquium was to examine how the law of armed conflict should be applied in modern warfare-focusing not just on the law, but also the crucial operational perspective of the warfighter. As Judge James E. Baker pointed out during his keynote luncheon address, the law of armed conflict is not for the specialist, it is not for the lawyer; it must be capable of application at the tactical level by the most junior of military personnel.' As Professor Dolzer's wisely cautions: 'We are living through a period of fundamental changes in the laws of armed conflict, and it is important that the implication of all these changes are thought through in a broad debate where the requirements of criminal law are discussed, where the realities of military conduct are taken into account and where not only the noble humanitarian aspirations in an isolated sense are highlighted.'2

The theme of the colloquium and, thus, this volume, is simply that while the politics and the modalities of force employed in Kosovo may have been unique, the legal and ethical lessons to be learned are applicable to any international armed conflict. So what are the jus in bello lessons to be learned from Operation Allied Force? First, the law of armed conflict applies to any clash of arms between two or more States. Secondly, only military objectives may be lawfully targeted and thej are defined within the temporal context of the given conflict. Thirdly, the principle of proportionality prohibits excessive collateral damage, yet the law does not impose absolute rules regarding implementation of weapons and tactics. Fourthly, despite the proliferation of treaties on the law of armed conflict, customary international law will continue to define major elements and interpretations of the law of armed conflict. Thus, it is essential that the development and determination of customary international law be properly understood and the continuing relevance of state practice be fully appreciated.

The Applicability of the Law of Armed Conflict 1. The existence of an international armed conflict While there was some debate contemporaneous with the Kosovo campaign over whether 'humanitarian intervention' triggered the applicability of the law of armed conflict, Professor Christopher Greenwood abruptly answers the question without qualification: while there is no definition of international armed conflict in any law of armed conflict treaty, it is agreed to be a factual determination based on the existence of actual hostilities between two or more States.3 This is irrespective of a declaration of war and of the justification for the hostilities. An international armed conflict 'exists from the first 1. Baker, infra, at 9.

2. Dolzer, infra, at 358.

3. Greenwood, infra, at 39.

   xiv moment after an exchange of fire' between two States.4 Opinio juris supports this, as NATO certainly believed the law of armed conflict was fully applicable and defined and incorporated the legal limits on the use of force within the NATO rules of engagement.5

2. The internationalization of an internal armed conflict The more challenging question is whether intervention by outside States (e.g., NATO) on behalf of an organized armed group within a State (e.g., the Kosovo Liberation Army) 'internationalizes' the conflict between that group and the State it is in conflict with (e.g., Serbia). Professor Greenwood argues that it does 'only if there is a clear relationship between the non-governmental party to the conflict and one of the States party to the international conflict.'6

   In the present case, there was not a sufficient link between the KLA and NATO to internationalize the conflict between the KLA and Serbia.7 As such, the members of the KLA were not entitled to combatant immunity nor were they entitled to prisoner of war status if captured.

3. The interdiction of maritime shipping The issue of whether NATO could lawfully intercept and divert neutral vessels carrying strategic commodities was a political question more than a legal one. The 'customary law of armed conflict still permits a State engaged in an international armed conflict to prevent strategic commodities such as oil from reaching its opponent by sea, even if carried by neutral flagged vessels.'8

   The law of neutrality was not abolished by the UN Charter, but belligerent rights still permit warring States to interdict shipping-even that from neutral States.9 While not disputing the continuing viability of customary belligerent rights, Professors Greenwood and Bring urge caution in applying them in the post-UN Charter era.10 NATO chose not to interdict shipping bound for Serbia, not because doing so would have been illegal, but because certain political 4. Shearer, infra, at 76.

5. Miller, infra, at 109.

6. Greenwood, infra, at 45.

7. Greenwood, infra, at 44-6; Ronzitti, infra, at 114.

8. Greenwood, infra, at 56. See also Walker, infra, at 92 and discussion comments by Professor Wolff H. Von Heinegg at 127-8.

9. Ronzitti, infra, at 117-8.

10. See Discussion, infra, at 127-30.

    XV leaders within the alliance were 'trying to damp down expectations of the level of violence' that would be applied.11

4. Is it the law of armed conflict or international humanitarian law? Professor Stein acknowledges the confusion created by 're-naming the 'laws of war' or 'law of armed conflict' as 'international humanitarian law' thus blurring the distinction between 'humanitarian' and 'human rights' law.'12 For Colonel Graham this 'renaming' indicates that some people think that elements of human rights law are included in the law of armed conflict-a troubling proposition for those who have to advise military commanders on their legal obligations given that human rights law is much less well-defined than the law of armed conflict.13 The US military prefers the term 'law of armed conflict' as its obligations are better understood and because, as a matter of policy, the US military applies the law of armed conflict to all military operations regardless of their characterization.

   Professors Bothe and Green, among others, engaged in a lively debate over whether humanitarian law, or the law of armed conflict, is lex specialis vis-a-vis human rights law.14 A lex specialis implies the existence of a lex generalis. However, because many human rights treaties do not apply during armed conflicts, it is incorrect to label human rights law a lex generalis and the law of armed conflict a lex specialis. They are two separate bodies of international law with, at times and depending on the treaties a State is party to, overlapping jurisdiction.

   The drafters of Protocol I and other more recent law of armed conflict treaties did draw from the realm of human rights law and incorporated certain human rights concepts into the law of armed conflict. What must remain clear is that these concepts are then implemented from the standpoint of the law of armed conflict. Where there is overlapping jurisdiction and the actions of a military commander are subject to review under both human rights law and the law of armed conflict, then the greater specificity of the latter must be determinative.

5. Is there a link between the jus ad bellum and the jus in bello? It is a well-established maxim that the law of armed conflict applies equally to both sides of a conflict, although some have argued that there may be a relationship between the degree of force that may be used and the 'purpose for 11. See the comments by Professor Greenwood, infra, at 127.

12. Stein, infra, at 319.

13. Graham, infra, at 381.

14. See Discussion, infra, at 392-6.

    xvi which force is permitted under the jus ad bellum.'15 Professor Bothe agrees that the 'jus ad bellum andjus in bello have to be kept separate' because the equality of the parties is an essential precondition...