VIII. The Laws of War in the War on Terror

• Author: Adam Roberts
• Pages: 175

Introduction The laws of war--the parts of international law explicitly applicable in armed conflict-have a major bearing on the 'war on terror' proclaimed and initiated by the United States following the attacks of 11 September 2001. They address a range of critical issues that perennially arise in campaigns against terrorist movements, including discrimination in targeting, protection of civilians, and status and treatment of prisoners. However, the application of the laws of war in counter-terrorist operations has always been particularly problematical. Because of the character of such operations, different in 1. Copyright ~ Adam Roberts, 2002, 2003. This is a revised version of Counter-terrorism, Armed Force and the Laws of War, 44 SURVIVAL 1 (Spring 2002), 7-32. It incorporates information available up to 15 December 2002. I am grateful for help received from a large number of people who read drafts, including particularly Dr. Dana Allin, Dr. Kenneth Anderson, Dr. Mary-Jane Fox, Colonel Charles Garraway, Richard Guelff, Commander Steven Haines, and Professor Mike Schmitt; participants at the Carr Centre conference on 'Humanitarian Issues in Military Targeting,' Washington DC, 7-8 March 2002; and participants at the US Naval War College conference on 'International Law & the War on Terrorism,' Newport, RI, 26-28 June 2002.

Versions of this paper have also appeared on the website of the Social Science Research Council,

New York, at http://www.ssrc.org.

2. Sir Adam Roberts is Montague Burton Professor of International Relations at Oxford University and Fellow of Balliol College. He is co-editor, with Richard Guelff (District of Columbia Bar), of DOCUMENTS ON THE LAWS OF WAR (Oxford and New York: Oxford University Press, 2000).

important respects from what was originally envisaged in the treaties embodying the laws of war, a key issue in any analysis is not just whether or how the law is applied by the belligerents, but also its relevance to the particular circumstances of the operations. It is not just the conduct of the parties that merits examination, but also the adequacy of the law itself. Thus there is a need to look at the actual events of wars involving a terrorist adversary, and at the many ways in which, rightly or wrongly, the law is considered to have a bearing on them.

The present survey critically examines not only certain statements and actions of the US administration, but also those of the International Committee of the Red Cross (ICRC) and certain other bodies concerned with humanitarian and human rights issues. While touching on many ways in which the laws of war impinge on policy, the main focus is on the following four core questions.

1. Are the laws of war, according to their specific terms, applicable to counter-terrorist military operations? 2. In the event that counter-terrorist military operations involve situations different from those envisaged in international agreements on the laws of war, should the attempt still be made to apply that body of law to such situations? 3. Are captured personnel who are suspected of involvement in terrorist organizations entitled to prisoner-of-war (POW) status? If they are not considered to be POWs, does the law recognize a different status, and what international standards apply to their treatment? 4. Is there a case for a revision of the laws of war to take into account the special circumstances of contemporary counter-terrorist operations? The answers to these questions may vary in different circumstances. The US-led 'war on terror' involves action in many countries, with different legal and factual contexts. By no means does all action against terrorism, even if part of the 'war on terror,' involve military action in any form, let alone armed conflict of the kind in which the laws of war are formally applicable.

The war's most prominent military manifestation to date, and the focus of this survey, is the coalition military action in Afghanistan that commenced on 7

October 2001 and still continues. While certain phases and aspects of Operation ENDURING FREEDOM involved an international armed conflict, unquestionably bringing the laws of war into play, other phases and aspects are more debatable with respect to the application of this body of law.

The laws of war are not the only body of law potentially relevant to the consideration of terrorist and counter-terrorist actions. For example, in many cases terrorists acts would indeed be violations of the laws of war if they were conducted in the course of an international or an internal armed conflict.

However, because they frequently occur in what is widely viewed as peacetime, the illegality of such acts has to be established first and foremost by reference to the national law of states; international treaties on terrorism and related matters;3 and other relevant parts of international law (including parts of the laws of war) that apply in peacetime as well as wartime, for example the rules relating to genocide, crimes against humanity and certain rules relating to human rights. All of these legal categories are relevant to consideration of the attacks of 11 September. For example, the attacks constitute murder under the domestic law of states, and at the same time can be regarded as 'crimes against humanity,' a category which encompasses widespread or systematic murder committed against any civilian population.4

3. For texts of treaties and other international documents on terrorism, and useful discussion thereof, see TERRORISM AND INTERNATIONAL LAW (Rosalyn Higgins and Maurice Flory eds., 1997). For more recent treaties and UN resolutions see the information on terrorism on the UN website, at http://www.un.org.

4. Crimes against humanity, defined in the Charter and Judgment of the International Military Tribunal at Nuremburg in 1945-46, are more fully defined in Article 7 of the 1998 Rome Statute of the International Criminal Court, which entered into force on 1 July 2002. These crimes include any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender... or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid.

U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court, U.N. Doc. No. A/CONF.183/9 (1998) [hereinafter Rome Statute]. The Rome Statute does not apply retroactively and the United States In an effort to answer the questions posed in this introduction, this survey is divided into six parts.

page 1. The Laws of War 178

2. Counter-Terrorist Military Operations 184

3. War in Afghanistan 191

4. Prisoners 208

5. Further Development of International Law 225

6. Conclusions 227

The Laws of War The laws of war (also referred to as 'jus in bello' and 'international humanitarian law applicable in armed conflict') are embodied and interpreted in a variety of sources: treaties, customary law, judicial decisions, writings of legal specialists, military manuals and resolutions of international organizations. Although some of the law is imnmensely detailed, its basic principles are simple: the wounded and sick, POWs and civilians are to be protected; military targets must be attacked in such a manner as to keep civilian casualties and damage to a minimum; humanitarian and peacekeeping personnel must be respected;

neutral or non-belligerent states have certain rights and duties; and the use of certain weapons (including chemical weapons) is prohibited, as also are certain other means and methods of warfare. The four 1949 Geneva Conventions-the treaties that form the keystone of the modern laws of war-are concerned largely with the protection of victims of war who have fallen into the hands of an adversary, as distinct from the conduct of military operations.5 has stated its intent to not become a party to this treaty. For a detailed treatment of US opposition to the ICC, see John Bolton, The Risks and Weaknesses of the International Criminal Court from America's Perspective, 41 VA. J. INT'L L 186 (2000); Michael Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20 (2001).

5. See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No: 3362, 75 U.N.T.S. 31;

Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12,1949, 6. U.S.T. 3217, T.LA.S. No. 3363, 75 U.N.T.S.

85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75

U.N.T.S. 287 [hereinafter GC IV]. These four conventions are all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) [hereinafter DOCUMENTS ON THE LAWS OF WAR]; and in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS...