1 Weapons of mass destruction are identified as “a chemical, biological, radiological, or nuclear weapon, or high-yield explosives” in the National Strategy for Combating Terrorism 9 (Feb. 2003), at <http://www.whitehouse.gov/news/releases/2003/02/counter_terrorism/counter_terrorism_strategy.pdf>>Google Scholar.

2 National Strategy for Homeland Security 9 (July 2002), at <http://www.whitehouse.gov/homeland/book/sect2-l.pdf>>Google Scholar (indicating that” [t]errorist groups are already exploiting new information technology and the Internet to plan attacks, raise funds, spread propaganda, collect information, and communicate securely”). “Asymmetric warfare” has been defined as fighting for different ends, or in different ways, or with different means from those of one’s opponent. Clodfelter, Mark, Airpower Versus Asymmetric Enemies: A Framework for Evaluating Effectiveness, 16 Air & Space Power J. 37, 37 (2002).Google Scholar

3 Mass-produced weapons such as the AK–47 and similar small arms stand out as late-twentieth-century symbols of warfare by the “people.” As John Keegan notes, the industrialization of modern society militarized the populations of both rich and poor states. Keegan, John, A History of Warfare 57 (Vintage Books 1994) (1993).Google Scholar

4 Not all killing results from modern weapons. The genocide of eight hundred thousand Rwandans was carried out largely by local populations, who were “spurred on by their radio station RTLM, spewing racist propaganda, exciting Hutus to kill all Tutsis as well as elements of UNAMIR.” Romeo, A. Dallaire, The End of Innocence: Rwanda 1994, in Hard Choices: Moral Dilemmas in Humanitarian Intervention 71, 78 (Jonathan, Moore ed., 1998).Google Scholar

5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8).Google Scholar

6 Id., para. 25.

7 See Cassese, Antonio, Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law, 12 Eur. J. Int’l L. 993 (2001)CrossRefGoogle Scholar; Fitzpatrick, Joan, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism. 96 AJIL 345, 348 (2002).Google Scholar

8 As Leslie Green notes, the classic position is that international law is concerned only with relations between states. As a result, conflict between states was what that law regulated. Green, L. C., The Contemporary Law of Armed Conflict 54–55 (2d ed. 2000).Google Scholar This view is reflected in Prosecutor v. Tadić, Appeals Judgment, No. IT–94–l–A, para. 84 (July 15, 1999) (holding that “[i]t is indisputable that an armed conflict is international if it takes place between two or more States”). Decisions of the International Criminal Tribunal for the Former Yugoslavia are available online at <http://www.un.org/icty>.

9 The use of the term “armed conflict” resulted from the recognition that the application of international humanitarian law should not be dependent upon formalities associated with war. International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary, Art. 2, at 17 (Pictetgen, Jean. ed., 1958), available at <http://www.icrc.org>>Google Scholar [hereinafter ICRC Commentary]. The more limited use of the term “war” was linked to efforts in the first half of the twentieth century to eliminate war as a means to resolve disputes between states. Hence the de jure concept of war being of limited use in the discourse for regulating in bello action. However, “characterising a conflict as war has considerable factual significance.” Greenwood, Christopher, The Concept of War in Modern International Law, 36 Int’l & Comp. L.Q. 283, 294 (1987).Google Scholar

10 Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 3, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III].

11 For example, Sean Murphy gives six reasons for concluding that the attacks of September 11 were an “armed attack”: the scale of the incidents was akin to that of a military attack; the United States immediately perceived the incidents as akin to a military attack; the U.S. interpretation was largely accepted by other nations; the incidents could properly be viewed as both a criminal act and an armed attack; there was prior state practice supporting the view that terrorist bombings could constitute an armed attack; and “the fact that the incidents were not undertaken directly by a foreign government cannot be viewed as disqualifying them from constituting an ‘armed attack.’ “ Sean, D. Murphy, Terrorism and the Concept of “Armed Attack” in Article 51 of the UN. Charter, 43 Harv. Int’l L.J. 41, 47–50 (2002).Google Scholar

12 Falk, Richard, The Great Terror War 101 (2003)Google Scholar; Brown, Davis, Use of Force Against Terrorism After September 11th: State Responsibility, Self-Defense and Other Responses, 11 Cardozoj. Int’l & Comp. L. 1, 6 (2003)Google Scholar; Cassese, supra note 7, at 999; Greenwood, Christopher, International Law and the ‘War Against Terrorism,’ 78 Int’l Aff. 301, 314 (2002)Google Scholar; see also Fitzpatrick, supra note 7, at 349 (indicating that “[t]he attacks of September 11, if attributable to a foreign state linked to Al Qaeda, clearly could give rise to an international armed conflict between the United States and the sponsor state”).

13 Murphy, supra note 11, at 47. Under the heading “Afghanistan as Self-Defense,” Richard Falk also refers to Al Qaeda as having inflicted more harm and trauma than any state (Pearl Harbor is viewed as remotely comparable), and then concludes that “ [i] n such circumstances stretching the international law doctrine of self-defense to include a non-state actor seemed reasonable and necessary.” Falk, supra note 12, at 102. Cherif Bassiouni observes that international humanitarian law is binding on both state and insurgent or revolutionary forces and then states: “Al Qaeda’s attacks against the United States on September 11 and earlier fall within this paradigm: they are subject to the strictures of international humanitarian law, regardless of the legitimacy of their perpetrators’ cause.” Subsequently, he goes on to discuss die role of Afghanistan as a “base of operation.” Bassiouni, M. Cherif, Legal Control of International Terrorism: A Policy–Oriented Assessment, 43 Harv. Int’l L. J. 83, 100 (2002)Google Scholar; see also Brown, supra note 12, at 24–29.

14 Cassese, supra note 7, at 1000; see also Leila Nadya, Sadat, Terrorism and the Rule of Law, 3 Wash. U. Global Stud. L. Rev. 135 (2004).Google Scholar

15 Brown, supra note 12, at 24–25 (stating: “If a non-state actor such as a terrorist organization commits aggression against a state, and the aggression is of sufficient scale and effect to amount to an armed attack, then the terrorist organization itself—notwithstanding its non-combatant status—has committed an armed attack against the state.”) (footnote omitted)).

16 Fitzpatrick, supra note 7, at 350.

17 According to Adam Roberts, the war in Afghanistan could best be classified under the informal category of “internationalised civil war,” in which “the rules pertaining to both international and civil wars may be applicable in different aspects and phases of the conflict.” Roberts, Adam, Counter-Terrorism, Armed Force and the Laws of War, Survival, Spring 2002, at 7, 16.Google Scholar

18 Dworkin, Anthony, Revising the Law of War to Account for Terrorism: The Case Against Updating the Geneva Conventions, on the Ground That Changes Are Likely Only to Damage Human Rights, Findlaw’s Writ: Commentary (Feb. 4, 2003), at <http://writ.news.findlaw.com/commentary/20030204_dworkin.html>Google Scholar. Since international law does not recognize war with groups like Al Qaeda, Dworkin suggests that one solution, which he admits is not likely to gain U.S. support, is to limit the notion of armed conflict to interstate and civil wars, and use law enforcement means to pursue Al Qaeda as a group of international terrorists.

19 Sadat, supra note 14, at 136.

20 Mullerson, Rein, Self-Defense in the Contemporary World, in Law and Force in The New International Order 13, 16 (Lori Fisler, Damrosch & David, J. Scheffer eds., 1991).Google Scholar Greenwood notes that “the categories of threat to the peace and armed attack are not mutually exclusive” in arguing that the characterization of the September 11 attacks as threats to die peace and international crimes does not mean “that they cannot also amount to an armed attack.” Greenwood, supra note 12, at 307. But see Bothe, Michael, Terrorism and the Legality of Pre-emptive Force, 14 Eur. J. Int’l L. 227, 229 (2003)Google Scholar (arguing diat” ‘armed attack’ in the sense of Article 51 is an actual armed attack,... not one which is only threatened”).

21 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (June 27) [hereinafter Nicaragua].

22 Gray, Christine, International Law and the Use of Force 141 (2000)Google Scholar; see also Nicaragua, 1986 ICJ REP. at 101, para. 191 (referring to “most grave” and “less grave” forms of the use of force).

23 Gray, supra note 22, at 141 (relying on Reisman, W. Michael, Allocating Competences to Use Coercion in the Post–Cold War World: Practices, Conditions, and Prospects, in Law and Force in the new International Order, supra note 20, at 26).Google Scholar

24 Id. at 141–42.

25 Dinstein, Yoram, War, Aggression and Self-Defence 174 (3d ed. 2001)Google Scholar (describing a de minimis non curat lex standard of “armed attack” as “a use of force causing human casualties and/or serious destruction of property”).

26 Greenwood, supra note 12, at 314, states that” [f]ighting between the United States and Al-Qa’ida... appears to fit neither of these moulds.” According to Fitzpatrick, supra note 7, at 348, “The September 11 attacks did not launch an internal armed conflict in the United States as understood in international humanitarian law.” Jinks, Derek, September 11 and the Laws of War, 28 Yale J. Int’l L. 1 (2003)Google Scholar, suggests that the attacks by Al Qaeda on 9/11 were not an international armed conflict (because there is no conflict between states), a classic internal armed conflict (because there was no control or attempt to seek to control territory), or a so-called war of national liberation. Instead, he views the conflict as an “armed conflict not of an international character” falling under common Article 3 of the 1949 Geneva Conventions. This approach appears somewhat counterintuitive given the ability of such terrorist groups to direct significant levels of violence across international borders and even continents. However, it does reflect the challenge contemporary conflict is presenting to traditional interpretations of international humanitarian law.

27 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 1, 1125 UNTS 609 [hereinafter Protocol II]; see also Rome Statute of the International Criminal Court, July 17, 1998, Art 8(2) (f), UN Doc. A/CONF.183/9* (1998), reprinted in 37ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN.177.2000.TREATIES-5 [hereinafter ICC Statute].

28 Bassiouni has noted that “[g]lobalization has... allowed terrorist groups to network with one another, permitting terrorist groups to develop strategic alliances with other groups engaged in transnational criminality in order to develop synergetic connections and to maximize respective capabilities and effectiveness.” Bassiouni, supra note 13, at 88; see also John, K. Cooley, Unholy Wars: Afghanistan, America and International Terrorism 127 (2d ed. 2000)Google Scholar (observing that all sides in the Afghan wars prior to September 11 “used drugs as an actual weapon and as a source of finance, [which] gave this monstrous and lucrative international business a decisive push forward”).

29 Greenwood, supra note 12, at 310-11 (containing the text of the United States and United Kingdom letters to the UN Security Council outlining their reliance on the right of self-defense enshrined in Article 51 of the UN Charter); Murphy, supra note 11, at 45–51. International recognition of the exercise of the right to self-defense is reflected in Security Council Resolutions 1368 (Sept. 12, 2001), 40 ILM 1277 (2001) and 1373 (Sept. 28, 2001), 40 ILM at 1278, the invocation of Article 5 of the Washington Treaty by the North Atlantic Council, NATO Press Release (2001) 124, Statement by the North Atlantic Council (Sept. 12, 2001), 40 ILM at 1267, and the Australian/United States invocation of Article TV of the ANZUS Treaty, Media Release, Application of ANZUS Treaty to Terrorist Attacks on the United States (Sept. 14, 2001), at <http://www.pm.gov.au/news/01_news.html>.

30 Murphy, supra note 11, at 49; see also Cassese, supra note 7, at 1000 (stating that” [i]n addition to using military force the US should also aim at bringing the persons accused of the crimes to justice”); Greenwood, supra note 12, at 305.

31 Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AJIL 328, 329 (2002).

32 See Oppenheim’s International Law 746 (Jennings, Robert & Watts, Arthur eds., 9th ed. 1996)Google Scholar (describing piracy as “an ‘international crime’, the pirate is considered the enemy of every state”).

33 Fitzpatrick, Joan, Speaking Law to Power: The War Against Terrorism and Human Rights, 14 Eur. J. Int’l L. 241, 246 (2003).Google Scholar

34 UN Security Council Resolution 1373, supra note 29, outlines numerous steps related to law enforcement for countering terrorist acts. Similarly, the U.S. National Strategy for Combating terrorism, supra note 1, at 15, which describes the terrorist threat in terms of a war, outlines a multifaceted approach to that threat, including the “use of diplomatic, economic, information, law enforcement, military, financial, intelligence, and other instruments of power.” See also Ignatieff, Michael, Human Rights, the Laws of War and Terrorism, 69 Soc. Res. 1137, 1145 (2002)Google Scholar (suggesting that the type of law to be applied should depend on whether the action against Al Qaeda is primarily a military or a civilian police operation).

35 See supra note 29.

36 Falk expressed concern over the empowerment of other states “to intensify violence against their own opponents”; the provision of support to “repressive regimes” allied in the war on terror; the potential for weakening international humanitarian law; the bypassing of the United Nations; and the potential for abuse of the just war doctrine. Falk, supra note 12, at 112–8; see also Fitzpatrick, supra note 7, at 347; Fitzpatrick, supra note 33, at 244–5. But see Abraham, D. Sofaer, On the Necessity of Pre-emption, 14 Eur.J. Int’l L. 209, 225 (2003)Google Scholar (stating that “[l]ooking at the ‘war’ on terrorism thus far, the concept of pre-emption is being applied in a responsible manner, though some statements made by the current Administration might have suggested a broader application”).

37 Grotius defines war as “the condition of those contending by force,” noting that the root of the word bellum is derived from the “old word duellem.” The de facto concept of war was not limited to “public” war between two sovereigns. He notes that private war “is more ancient than public war and has, incontestably, the same nature as public war; wherefore both should be designated by one and the same term.” 2 Hugo Grotius, De jure belli ac pacis libri tres 33 (Francis, W. Kelsey trans., Carnegie ed. 1925) (1646)Google Scholar.

38 Geneva Convention No. III, supra note 10, Art. 4(2).

39 Cassese, supra note 7, at 994. A common thread in many definitions has been the connection with killing for politically motivated purposes. Bassiouni, supra note 13, at 84 (defining terrorism as “a strategy of violence designed to instill terror in a segment of society in order to achieve a power-outcome, propagandize a cause, or inflict harm for vengeful political purposes”) ; see also Grant Wardlaw,Political Terrorism 8–10 (1982)Google Scholar (distinguishing between acts of “terror,” which may be carried out by criminals, mentally unstable persons, etc., and “terrorism,” which is defined by its “high symbolic content”).

40 Philip Heymann points out that the definition of terrorism by academics often has a far more moral or criminal flavor than state definitions suggesting that terrorists are hostile forces acting for political purposes. In his view, violence against civilians in the context of a guerrilla war or during a war between states is “not considered terrorism in many contexts simply because it is not subject to the same remedies (which are designed for times of peace).” Philip, B. Heymann, Terrorism and America 5 (1998).Google Scholar

41 The U.S. government recently defined terrorism as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents” (emphasis added). National Strategy for Combating Terrorism, supra note 1, at 1.

42 States often use a definition of terrorism that is limited to nonstate actors. However, terror in its broadest sense has been and remains a part of warfare. States engaged in armed conflict may legitimately attempt to instill fear in an opponent, but” [a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 51(2), 1125 UNTS 3 ‘[hereinafter Protocol I]. States can commit illegitimate acts of terror. See Falk, supra note 12, at 109; Townshend, Charles, Terrorism: A Very short Introduction 6–8 (2002)Google Scholar; Wardlaw, supra note 39, at 9.

43 Terrorism ultimately refers to acts that are already illegal under domestic and international law, including the law regulating armed conflict. Townshend, supra note 42, at 5.

44 While forming only a small part of his discussion of “people in arms,” Clausewitz provides insight into how war was changing in Europe at the beginning of the nineteenth century, including insurgent operations with all the attributes of guerrilla warfare. Carl von, Clausewitz, On War 479 (Howard, Michael & Paret, Peter trans. & eds., 1976).Google Scholar In the 1863 Lieber Code, armed individuals or groups participating in conflict without authority are classified as “highway robbers or pirates,” “armed prowlers,” or “war-rebels.” U.S. War Dep’t, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Arts. 82, 84, 85 (Apr. 24, 1863), reprinted in The Laws of Armed Conflicts 3 (Schindler, Dietrich & Jiři, Toman eds., 3d rev. ed. 1988)Google Scholar[hereinafter Lieber Code].

45 See Greenwood, supra note 12, at 308; see also Sofaer, supra note 36, at 209 (general discussion of the Caroline dispute).

46 As of November 9, 2003, a total of 191 states were parties to the 1949 Geneva Conventions; 161 countries were parties to Protocol I; and 156 were parties to Protocol II. The 30 countries that are not parties to Protocol I include India, Indonesia, Iran, Iraq, Israel, Japan, Pakistan, and the United States.

47 As Green notes, “[T]o some extent certain non-international conflicts have come under the aegis of international law since 1977 with the adoption of Article 1 (4) of Protocol I and Protocol II additional to the 1949 Geneva Conventions . . . .” Green, supra note 8, at 55-56. On national liberation movements, see note 72 infra.

48 International humanitarian law has always struggled with how to deal with and categorize persons who do not qualify for combatant status but participate directly in hostilities. They have variously been termed “unlawful belligerents,” “unlawful combatants,” “unprivileged belligerents,” or simply “enemy combatants.” Spies and saboteurs operating behind enemy lines out of uniform are considered to be “unprivileged belligerents” and therefore not entitled to combatant or prisoner-of-war status. Richard, R. Baxter, So-called “Unprivileged Belligerency “: Spies, Guerrillas, and Saboteurs, 1951 Brit. Y.B. Int’l L. 323, 328 Google Scholar (defining unprivileged belligerents as “persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by reason of die fact drat they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949”).

49 Gerald, L. Neuman, Humanitarian Law and Counterterrorist Force, 14 Eur. J. Int’l L. 283, 297 (2003)Google Scholar; see also Waldemar, A. Solf, The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice, 33 Am. U. L. Rev. 53, 58–59 (1983).Google Scholar As noted in Moir, Lindsay, The Law of Internal Armed Conflict 60 (2002),Google Scholar “Once rebels are captured, or otherwise rendered unable to continue fighting,. .. they become hors de combat and are entitled to the same level of humane treatment as civilians. Their legal status nevertheless remains unchanged, exposing them to the full force of the State’s criminal law.”

50 Bassiouni, supra note 13, at 99.

51 Dinstein notes that “if such an assault would cause fatalities (resulting e.g. from the shutdown of computers controlling waterworks and dams, with a consequent flooding of inhabited areas), it would qualify as armed attack.” Dinstein, supra note 25, at 166-67; see also Rattray, Greg, Strategic Warfare in Cyberspace 20 (2001)Google Scholar (indicating that such a “microforce,” if applied to shutting down a nuclear plant, could be equated to a weapon of mass destruction).

52 Chandrasekaran, Rajiv & Thomas, E. Ricks, U.S. Opens War with Strikes on Baghdad Aimed at Hussein, Wash. Post, Mar. 3, 2003, at A1.Google Scholar

53 For a discussion of the Israeli approach to targeting, see Moore, Molly, Israel’s Lethal Weapon of Choice, Wash. Post, June 29, 2003, at A1.Google Scholar

54 A missile strike from a Predator drone aircraft in November 2002 killed six suspected members of Al Qaeda in Yemen. Johnston, David & David, E. Sanger, Fatal Strike in Yemen Was Based on Rules Set out by Bush, N.Y. Times, Nov. 6, 2002, at Al6 Google Scholar (stating that” [t]he missile strike represented a tougher phase of the campaign against terror and moved the Bush administration away from the law enforcement-based tactics of arrests and detentions of Qaeda suspects that it had employed outside Afghanistan in the months since the fighting there ended”).

55 In the United States, research into less-than-lethal weapons for “law enforcement, corrections, and military personnel” has included work on blunt-trauma projectile weapons, pepper spray for barricade scenarios, technology for disorienting suspects, and electric-shock weapons. Hearing of the Subcommittee on Aviation of the [House] Committee on Transportation and Infrastructure (May 2, 2002) (statement of Sarah V. Hart, director of the National Institute of Justice), available in LEXIS, Legis Library, Fednew File.

56 For example, in October 2002, Russian Special Forces used Fentanyl, a synthetic anesthetic, in an attempt to incapacitate a Chechen rebel group that had seized a theater in Moscow, causing the death of a large number of hostages. The U.S. National Institute of Justice has researched the use of Fentanyl drugs as nonlethal weapons, but in the form of a dart and not a gas. Bowman, John, Russian Knock-out Gas, CBC News Online, Oct. 28, 2002, at <http://www.cbc.ca/news/features/knockoutgas.html>.Google Scholar

57 Prosecutor v. Delalić, Appeals Judgment, No. IT–96–21–A, para. 149 (Feb. 20, 2001) (Čelebići case); see also Meron, Theodor, The Humanization of Humanitarian Law, 94 AJIL 239, 266-67 (2000).Google Scholar

58 Dinstein, Yoram, Terrorism as an International Crime, 1987 Isr. Y.B. Hum. Rts. 55, 63 Google Scholar; see also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II. 116, doc. 5, rev. 1 corr., para. 81 (Oct 22, 2002), available at <http://www.cidh.oas.org/Terrorism/Eng/parLc.htm> [hereinafter OAS Report on Terrorism].

59 Ignatieff, supra note 34, at 1144. The depth of the proscription against the taking of life among early Christians is reflected in the view that there “was no lack of those who did not indeed disapprove of public war, but who thought that in the case of an individual self-defence was forbidden.” Grotius, supra note 37, at 93.

60 Brownlie, Ian, International Law and the Use of Force by States 5 (1963)Google Scholar; see also Mckeogh, Colm, Innocent Civilians: the Morauty of Killing in War 19–22 (2002)CrossRefGoogle Scholar (indicating that Augustine’s work on just war theory was partly motivated in reaction to the leveling of blame at the pacifist church for the downfall of the Roman Empire).

61 OAS Report on Terrorism, supra note 58, para. 107 (quoting Neira Alegría Case, 20 Inter-Am. Ct. H.R. (ser. A) para. 75(1995)).

62 Robin Coupland points out that there are alternative definitions of humanity, one being “the human race; mankind; human beings collectively”; and another, “the character or quality of being humane; behaviour or disposition towards others such as befits a human being.” Coupland, Robin, Humanity: What Is It and How Does It Influence International Law? Int’l Rev. Red Cross, Dec. 2001, at 969, 972 Google Scholar (quoting 7 Oxford English Dictionary 476 (2d ed. 1989)Google Scholar). Coupland makes a strong argument for viewing “humanity” in an interrelated fashion with physical security and health so as to reinforce its place in the legal dialogue of international humanitarian law. However, Green, supra note 8, at 56, notes that “the purpose of the law of armed conflict is to a great extent directed to the preservation of the principles of humanitarianism.” It is in the context of principle and behavior that humanity has traditionally been balanced against military necessity.

63 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Doc. A/CONF. 144/28/Rev. 1, at 112, para. 9 (1990), available at <http://193.194.138.190/html/menu3/b/h_comp43.htm> [hereinafter Basic Principles].

64 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 6(1), 999 UNTS 171 (providing: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”).

65 European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, Art. 2, 213 UNTS 221.

66 Id., Art. 15(2).

67 Examples of the parallelism of content include “the right to life; the prohibition of torture and cruel, inhuman, or degrading treatment or punishment; arbitrary arrest or detention; discrimination on grounds of race, sex, language, or religion; and due process of law.” Meron, supra note 57, at 266.

68 Id. at 245; see also Stephens, Dale, Human Rights and Armed Conflict—The Advisory Opinion of the International Court offustice in the Nuclear Weapons Case, 4 Yale Hum. Rts. & Dev. L. J. 1, 3 (2001)Google Scholar (suggesting that “the Advisory Opinion is a significant statement on the convergence of humanitarian principles between the law of armed conflict and international human rights law”).

69 For example, common Article 3 of the four 1949 Geneva Conventions and Additional Protocol II are important in terms of providing humanitarian protection to victims of internal conflict, but they do not provide the level of detail or scope of protection afforded by the codified law governing international armed conflict.

70 War is referred to here in a “factual” sense. See supra note 9.

71 Brownlie, supra note 60, at 3-13.

72 The term “national liberation movements” is used generically to describe “peoples [who] are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination,” as provided for in Protocol I, supra note 42, Art. 1 (4).

73 George, H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AJIL 1, 4–6 (1991)Google Scholar; Hans-Peter, Gasser, An Appeal for Ratification by the United States, 81 AJIL 912, 916–17 (1987)Google Scholar; see also Meron, Theodor, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 AJIL 678, 683 (1994).Google Scholar There is, however, no guarantee that the scope of the provision on national liberation movements engaged in self-determination will be so narrowly interpreted, although it has been noted that a broader interpretation “can only occur if the practice of States in this regard undergoes considerable change.” Greenwood, Christopher, Terrorism and Humanitarian Law—The Debate over Additional Protocol I, 1989 Isr.Y.B. Hum. Rts. 187, 194–95.Google Scholar

74 Hans-Peter, Gasser, Acts of Terror, “Terrorism “ and International Humanitarian Law, Int’l Rev. Red Cross, Sept. 2002, at 547, 563 Google Scholar (stating: “Any combatant who chooses to engage in guerrilla warfare remains bound to respect all rules on the conduct of military operations and the protection of civilians. There will be no excuse if he combines (legitimate) guerrilla warfare with a (criminal) terrorist campaign.”); see also Howard, S. Levie, Prisoners of War in International Armed Conflict 50–52 (International Law Studies No. 59, 1978)Google Scholar; Kalshoven, Frits, The Position of Guerrilla Fighters Under the Law of War, 11 Mil. L. & L. War Rev. 55, 81–82 (1972)Google Scholar; Mallison, W. Thomas & Sally, V. Mallison, The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict, 9 Case W.Res. J. Int’l L. 39, 58–63 (1977).Google Scholar

75 Devattel, Emmerich, The Law of Nations, bk. III, ch. II, §6 (Chittyed, Joseph., 1834)Google Scholar (Gaunt reprint 2001) (1758). Here Vattel was relying on Grotius’s view that the sovereign was the principal actor and the “instruments” were men who take up arms. See also McKeogh, supra note 60, at 109.

76 This theme was reflected in the writings of Jean-Jacques Rousseau where he explained that war was a relation between states rather than men. McKeogh, supra note 60, at 121. See also infra note 114 for a discussion of the group characteristics of combatancy.

77 Martin van, Creveld, The Rise and Decline of the State 249 (1999)Google Scholar; see also Thomas, Ward, the ethics of destruction 62 (2001)Google Scholar (discussing the link between the organization of the state and the maintenance of military forces).

78 For example, Walzer, Michael, Just and Unjust wars 185–86 n.* (1977)Google Scholar, suggests that war rights should attach to guerrilla forces on the basis of the degree of civilian support they have “when the people ‘look after’ the guerrillas.” While this theory has some resonance with respect to the recognition of national liberation movements under Additional Protocol I, the state has remained the primary legitimate authority. See supra note 73.

79 International agreements, the acceptance by states of customary norms, the existence of the International Court of Justice, and the creation of international criminal tribunals and courts point to the availability of alternative mechanisms to avoid and resolve disputes. For example, international and regional cooperation by states in dealing with terrorism can be effected through treaties, the implementation of extradition, mutual legal assistance, information sharing, the freezing of financial assets, immigration controls, and the prosecution and punishment of the perpetrators. OAS Report on Terrorism, supra note 58, paras. 33-35; Bassiouni, supra note 13, at 94.

80 Bassiouni, supra note 13, at 95.

81 It has been suggested that the Security Council lacks the cohesion, sovereignty, and effective chain of command for military forces necessary for the exercise of “international statecraft. “ James Turner, Johnson, Morality and Contemporary Warfare 60–61 (1999).Google Scholar

82 The future holds the prospect of global targeting by remotely piloted hypersonic aircraft capable of hitting targets nine thousand miles away from the launching point. Kniazkov, Maxim, U.S. Launches Effort to Develop Hypersonic Strike Capability, Agence-France Presse, July 2, 2003 Google Scholar, available in LEXIS, News Library, Wires File 83 As Christopher Morris argues, states’ reliance on force or sanctions is often exaggerated. States exert control by a variety of behaviors, including taxes, licensing, establishing standards for action, and exercising the right to adjudicate. Governing by the will of the people is another obvious multiplier of the state’s power to compel obedience. Christopher, W. Morris, An Essay on the Modern State 199–204 (1998)Google Scholar. Van Creveld, in referring to the role of the state in “disciplining the people,” indicates that its “grip on society” is the product not only of the development of specialized police forces and prison systems, but also of state-run educational systems and social legislation governing work and health. Van Creveld, supra note 77, at 205–24.

84 Brownlie, Ian, The Rule of Law in International Affairs 213 (1998)Google Scholar, identifies elements of the rule of law as: the powers of officials must be based on authority conferred by law; the law must conform to standards of substantial and procedural justice; the powers of the executive, the legislature, and the judicial function must be separated; the judiciary should not be subject to the control of the executive; and all legal persons are subject to the rules of law. See also Reference re Secession of Quebec, [1998] 2 S.CR. 217, 257–58.

85 Keegan, supra note 3, at 386.

86 Van Creveld, supra note 77, at 206–07.

87 Townshend, supra note 42, at 36–37.

88 Kolb, Robert, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 38 Int’l Rev. Red Cross 409, 410 (1998).Google Scholar

89 For example, the International Covenant on Civil and Political Rights, supra note 64, Art. 4, the European Convention for Human Rights, supra note 65, Art. 15, and the American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 UNTS 123, all provide for the suspension of certain rights in times of crisis like wars and emergencies. On the use of derogations in respect of terrorist activity, see Sabine von, Schorlemer, Human Rights: Substantive and Institutional Implications of the War Against Terrorism, 14 Eur. J. Int’l L. 265, 278-80 (2003)Google Scholar; see also Hernán, Montealegre, The Compatibility of a State Party’s Derogation Under Human Rights Conventions with Its Obligations Under Protocol II and Common Article 3, 33 Am. U. L. Rev. 41, 41–45 (1983)Google Scholar.

90 On the role of the “third” force in counterterrorism, see WARDLAW, supra note 39, at 97–100. For example, in Canada the use of the armed forces in support of law enforcement is governed both by statutes, i.e., The Emergencies Act, R.S., ch. 22 (4th Supp. 1985), and the National Defence Act, R.S., ch. N-5 (1985), and by the exercise of the Crown prerogative, i.e., Canadian Forces Armed Assistance Directions, P.C 1993–624 (Mar. 30, 1993); see also Fitzpatrick, supra note 33, at 244.

91 Kalshoven, supra note 74, at 78, in discussing the status of the Israeli/PLO conflict, states:

Murphy, supra note 11, at 46–47, notes that Israeli operations in Lebanon in 1982, the 1985 Israeli attack on PLO headquarters in Tunisia, and the 1986 U.S. attack on Libya in response to the Berlin dance club bombings have not met with “widespread acceptance by the global community” that the terrorist acts that precipitated those responses constituted an “armed attack.”

92 In 2002 Al Qaeda was divided into four committees: military, finance and business, fatwa and Islamic study, and media and publicity. The military committee conducted recruitment, training, procurement, transportation, and the launching of military operations, as well as the development of tactics and the acquisition and manufacture of special weapons. It included an extensive network of cells and agents and an internal security service. Rohan Gunaratna, Inside Al Qaeda 57–58 (2002).

93 See Ignatieff, Michael, The Warrior’s Honor 159 (1997)Google Scholar (noting that a major contemporary problem is that some states are disintegrating and losing their monopoly on violence); see also Van Creveld, supra note 77, at 403–08. However, there is continuing reliance on the responsibility of states for activities occurring within their borders. This approach is reflected in the U.S. National Strategy for Combating Terrorism, supra note 1, at 11–12 Google Scholar, which aims at reducing global terrorism to, first, a regional, and then, a local threat amenable to criminal law enforcement.

94 Protocol I, supra note 42, Art. 43.

95 Grottus, supra note 37, at 654 (customary international law); Solf, supra note 49, at 58 n.31 (referring to Arce v. State, 83 Tex. Crim. 292, 202 S.W. 951 (1918)).

96 As James Spaight indicated in his postwar assessment of the law of air warfare:

Spaight, J. M., air Power and War Rights 277 (3d ed. 1947)Google Scholar. He goes on to state: “Bombing for moral effect only remains unlawful. In that sense, attack on the civilian population is contrary to international law.” Id.

97 Id.

98 For background, see Baxter, R. R., Humanitarian Law or Humanitarian Politics? The 1974 Diplomatic Conference on Humanitarian Law, 16 Harv. Int’l J. 1, 4–9 (1975).Google Scholar

99 See, e.g., Greenwood, Christopher, Customary Law Status of the 1977 Geneva Protocols, in Humanitarian Law of Armed Conflict: Challenges Ahead 93, 102–03 (Astrid, J. M. Delissen & Gerard, J. Tanjaeds., 1991)Google Scholar (discussing U.S. recognition of the customary law status of some of the basic principles for the protection of civilians, including definition of military objectives and the principle of proportionality).

100 Protocol I, supra note 42, Arts. 43, 44.

101 Id., Art. 50.

102 Id., Art. 52.

103 Id., Arts. 52 (2), 57. For example, Article 57(2) states that everything feasible must be done to “verify that the objectives to be attacked are neither civilians nor civilian objects.”

104 Geneva Convention No. III, supra note 10, Arts. 4(4), (5); see also Lieber Code, supra note 44, Art. 50; Project of an International Declaration Concerning the Laws and Customs of War (Brussels Declaration), Aug. 27, 1874, Art. 34, 65 Brit. Foreign & St. Papers 1005 (1873-74)Google Scholar, reprinted in The Laws of Armed Conflicts, supra note 44, at 27; Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention Respecting the Laws and Customs of War on Land, Oct 18, 1907, Art. 13, 36 Stat 2277, 1 Bevans 631 [hereinafter Hague Regulations].

105 Walzer, supra note 78, at 145–46.

106 Protocol I, supra note 42, Art. 51 (3).

107 The doctrine of double effect had its genesis in the early Christian church. It is based on the argument that an act that has an “evil” consequence can be performed if the act is good, or at least indifferent; the direct effect is morally acceptable; the intention of the actor is good; and the good effect is sufficiently good to compensate for the evil effect. Johnson, supra note 81, at 131–34; Walzer, supra note 78, at 153. The proportionality principle is reflected in Article 51 of Protocol I, in which the actual harm prohibited is an “indiscriminate attack” when it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects,... which would be excessive in relation to the concrete and direct military advantage anticipated.”

108 Discussion of assassination from a legal perspective is complicated by the different interpretations of the term for peacetime and armed conflict, respectively. In peacetime assassination is normally associated with the illicit killing of government officials, while in armed conflict the killing is linked to treachery regardless of the status of the victim. See Michael, N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 Yale J. Int’l L. 609, 633 n. 120 (1992)Google Scholar (stating: “The peacetime prohibition serves to protect individuals involved in international affairs.... The war prohibition focuses on the method used to kill, not on the legitimacy of the target.”); see also Parks, W. Hays, Memorandum of Law: Executive Order 12333 and Assassination, Army Law., Dec. 1989, at 4.Google Scholar Under this interpretation, therefore, the intentional killing of a civilian not taking a direct part in hostilities without any act of treachery, while illegal, would not constitute assassination.

109 A long-standing debate about the effectiveness of killing enemy leaders ranges from whether it will have any effect to whether it will possibly prolong the conflict. See Berkowitz, Bruce, The New Face of War 127–29 (2003)Google Scholar; Gentili, Alberico. De Iure Belli Libri Tres 167 (John, C. Rolfe trans., Carnegie ed. 1933)Google Scholar (1612). Support for assassination is often based on the argument that striking at those directly responsible for the conflict avoids the death of “innocents,” including members of the military. Id. at 167. On assassination generally, see THOMAS, supra note 77, at 47–85. The lawful targeting of leaders can include heads of state in uniform or even a civilian commander in chief. Parks, supra note 108, at 6 n.4. But see Dinstein, Yoram, Legitimate Military Objectives Under the Current Jus in Bello, 78 Int’l L. Stud. 139, 158 (2002)Google Scholar (indicating that “a civilian member of the political leadership does not become a military objective by himself and cannot be targeted away from such objective”). In addition, targeting decisions should not depend on the constitutional arrangements of a particular country. In that respect, it is not uncommon for civilian politicians to become involved in directing military operations or selecting targets. See Short, Michael, Operation Allied Force from the Perspective of the NATO Air Commander, 78 Int’l L. Stud. 19, 20, 25 (2002).Google Scholar In such situations those politicians leave themselves open to being considered as valid targets.

110 Protocol I, supra note 42, Art. 51 (3); Protocol II, supra note 27, Art. 13.

111 See Amnesty International, Israel and the Occupied Territories: State Assassinations and other Unlawful Killings 29 (AI Index No. MDE 15/005/2001, Feb. 2001)Google Scholar; see also McKeogh, supra note 60, at 140 (interpreting Protocol I to mean that irregular combatants could “move from the category of combatant to the category of civilian (and back again) permitting the same persons to be both combatant and non-combatant in the course of a day”).

112 See Parks, W. Hays, Air War and the Law of War, 31 A.F. L. Rev. 1, 118–20 (1990).Google Scholar

113 See Case 11.137,Juan Carlos Abella v. Argentina, 1997 Inter-Am. Y.B. on H.R. 602 (Commission report). While dealing with the issue of direct or active participation in hostilities, the Abella case centered to a large extent on allegations of summary executions and abuse that occurred after the participants were captured. See also Prosecutor v. Tadic, Opinion and Judgment, No. 1T-94-1-T, para. 616 (May 7, 1997), excerpted in 36 ILM 908 (1997) (determining that the protection provided by common Article 3 should be extended to persons who were captured or detained because “[wjhatever their involvement in hostilities prior to that time, . . . [they] cannot be said to have been taking an active part in the hostilities”).

114 The loss of combatant privilege can result from not acting on behalf of a state or national liberation movement, or failure to comply with the group characteristics of combatancy set out in Geneva Convention No. III, supra note 10, Art. 4(2) and Protocol I, supra note 42, Art. 43. Further, failure to meet the requirements of the second sentence of Article 44(3) of Protocol I can result in the loss of POW status, although Article 44(4) provides that such persons are to be “given protections equivalent in all respects to those accorded to prisoners of war.” Six criteria are relevant to the determination of combatant status. It has been suggested that the first three—being organized, being under responsible command, and belonging to a party to the conflict—apply to the group and not to individuals. The remaining criteria—displaying a distinctive sign, carrying weapons openly, and complying with the customs and law of war—are both group and individual in nature. Draper, G. I. A. D., The Status of Combatants and the Question of Guerrilla Warfare, 1971 Brit. Y.B. Int’l L. 173, 196–97.Google Scholar However, scholars have found it difficult to agree on which of the conditions are collective and which individual. According to one interpretation of Additional Protocol I, status cannot be denied on a group basis for a failure by an armed force to enforce compliance with international humanitarian law, see, e.g., Bothe, Michael, Karl Josef, Partsch, & Waldemar, A. Solf, New Rules For Victims of Armed Conflicts 238–39 (1982)Google Scholar, but this interpretation does not appear to reflect the majority opinion.

115 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160, para. 146 (1995); see also McKerr v. United Kingdom, 34 Eur. H.R. Rep. 553, 598, para. 108 (2001). See also the following three cases which differ only in relation to the facts and amount of damages awarded: Hugh Jordan v. United Kingdom, App. No. 24746/94(2001); Kelly and Others v. United Kingdom, App. No. 30054/96 (2001); Shanaghan v. United Kingdom, App. No. 37715/97 (2001). All these cases are available online at <http://www.echr.coe.int>.

116 See Brownlie, supra note 84, at 65 (noting that “the concepts of human rights and the institutions aimed at the monitoring and enforcement of human rights constitute what is, to a certain extent, a discrete public order system”). The term “extralegal killing” is used below synonymously with “extrajudicial” killing. “Extrajudicial” appears to have its genesis in human rights documents such as the International Covenant on Civil and Political Rights, Article 6, which, in describing the right to life, specifically qualifies it by prohibiting arbitrary deprivation of life and permitting the death penalty in certain respects. Much of the discourse of human rights emphasizes the controversial issue of judicially sanctioned killing. The term “extralegal” more directly reflects the scope of the authority to use force under human rights norms, including the right to act legitimately in self-defense.

117 McCann, 21 Eur. H.R. Rep. at 160, para. 148.

118 Id., para. 149.

119 Tennessee v. Garner, 471 U.S. 1 (1985). This case and Graham v. Connor, 490 U.S. 386 (1989), require a police officer to have probable cause to believe a suspect poses a threat of serious physical harm, either to the officers or to others, before using force to prevent escape. The Graham case sets out an objective standard of reasonableness to consider if a suspect poses an immediate threat to the safety of police officers or others. This case law was relied on by the Department of Justice in its review of the 1992 shooting of a suspect’s wife by an FBI sniper, in which it determined that rules of engagement directing the police that “deadly force can and should be employed” against an adult male with a rifle if the shot could be taken without endangering any children were improper and failed to comply with constitutional standards. U.S. Dep’t of Justice, Report on Internal Review Regarding the Ruby Ridge Hostage Situation and Shootings by Law Enforcement Personnel, pt. IV.F.4, available at <http://www.byington.org/Carl/ruby/ruby4.6.htm> (visited Oct. 26, 2003).+(visited+Oct.+26,+2003).>Google Scholar

120 Garner, 471 U.S. at 9.

121 See Idaho v. Horiuchi, 253 F.3d 359, 377, vacated as moot, 266 F.3d 979 (9th Cir. 2001), quoted in William, C. Banks & Peter, Raven-Hansen, Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. Rich. L. Rev. 667, 677 (2003)Google Scholar, which found that “wartime [shoot-to-kill] rules are patently unconstitutional for a police action.” See also McKerr v. United Kingdom, 34 Eur. H.R. Rep. 553, 595-96, para. 100 (2001) (allegations by next of kin that pattern of conduct by police authorities in using unnecessary and disproportionate force was evidence of a “shoot-to-kill” policy).

122 Basic Principles, supra note 63, paras. 1, 11.

123 Id., paras. 2, 3.

124 Id., para. 10.

125 Id., para. 11(b).

126 Id., para. 9.

127 Id., para. 4.

128 Id., para. 8.

129 Id., paras. 6, 11(f).

130 Id., para. 11(c).

131 Id., para. 22.

132 Id., para. 23.

133 Id., para. 24.

134 Id., para. 7.

135 Id., para. 25.

136 Id., para. 26.

137 ESC Res. 1989/65, annex, 1989 UN ESCOR, Supp. No. 1, at 52, para. 1, UN Doc. E/1989/89, available at <http://www.umn.edu/humanrts/instree/i7pepi.htm>. Exceptional circumstances such as “a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions.”

138 Id., para. 9.

139 McKerr, 34 Eur. H.R. Rep. 553, 599, para. 111 (2001).

140 Id.

141 Id. (citing European Convention on Human Rights, supra note 65, Arts. 1, 2).

142 Id.

143 Id. at 599, para. 113; see Oguv v. Turkey, 31 Eur. H.R. Rep. 912, 944–45, para. 91 (1999) (holding that the lack of a postmortem or other forensic examination and the failure to question personnel involved in the operation were indicative of an improper investigation); see also Gill v. Turkey, 34 Eur. H.R. Rep. 719, 744–46, paras. 88–95 (2000).

144 McKerr, 34 Eur. H.R. Rep. at 599, para. 113.

145 Id.

146 Id., para. 112.

147 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 161, para. 150 (1995).

148 McKerr, 34 Eur. H.R. Rep. at 600, para. 115.

149 Id.

150 Id. at 603-12, paras. 124–56.

151 Id. at 612-13, paras. 157–58.

152 McCann, 21 Eur. H.R. Rep. 97 (1995).

153 G. Davidson Smith, Combating Terrorism 149 (1990).

154 McCann, 21 Eur. H.R. Rep. at 173, para. 200; id. at 179, para. 5 (joint dissenting op.). The majority determined that where a decision by security forces to use lethal force is based “on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken,” it could be justified under the European Convention on Human Rights.

155 Id. at 174, 176-77, paras. 205, 213.

156 Id. at 176, para. 212.

157 Id. at 180, para. 8.

158 Id. at 180-81, para. 9.

159 Id. at 181.

160 Id. at l82. para. 11.

161 Id. at 174, para. 205.

162 The issue of control is raised in the following quote by a senior Israeli official regarding the policy of “targeted killing”:

Moore, supra note 53.

163 Michael, J. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, 91 AJIL 417, 423 (1997).Google Scholar

164 Protocol I, supra note 42, Arts. 86, 87; see also Prosecutor v. Delalić, supra note 57, paras. 182–99.

165 ICC Statute, supra note 27, Art. 33; see also Prosecutor v. Erdemović, Sentencing judgment, No. IT-96-22-TWs (Mar. 5, 1998).

166 Protocol I, supra note 42, Art. 43.

167 Id., Art. 90. For a general discussion of the means available to prevent breaches of international humanitarian law and supervise the conduct of the parties to a conflict, see Green, supra note 8, ch. 17.

168 For assessments of the limitations on the use of reprisals under international humanitarian law, see Greenwood, Christopher, Reprisals and Reciprocity in the New Law of Armed Conflict, in Armed Conflict and the New Law 227 (Michael, A. Meyer ed., 1989)Google Scholar; Meron, supra note 57, at 247–51.

169 Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Dec. 12, 2000, Art. 5, 40 ILM 260 (2001).

170 Prosecutor v. Tadić, supra note 8, paras. 96–127.

171 Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, SC Res. 955, Art. 4 (Nov. 8, 1994), 33 ILM 1598 (1994).

172 ICC Statute, supra note 27, Art. 8(2) (e).

173 Françoise, Hampson, Human Rights and Humanitarian Law in Internal Conflicts, in Armed Conflict and the new Law, supra note 168, at 55, 71.Google Scholar

174 For an outline of the increasing involvement of various UN and regional bodies in referring to international humanitarian law norms, see Meron, supra note 57, at 266-75.

175 Abella, supra note 113.

176 Case 10.951, Coard and Others v. United States, 123 ILR 156 (Inter-Am. Commission report 1999); see also Case 10.573, Salas and Others v. United States, 123 ILR 118 (Inter-Am. Commission report 1993).

177 Zegveld, Liesbeth, The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case, 38 Int’l Rev. Red Cross 505 (1998).CrossRefGoogle Scholar

178 Coard, 123 ILR at 169, para. 38.

179 Inter-American Commission on Human Rights, Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba) (Mar. 12, 2002), 41 ILM 532 (2002).

180 Response of the United States to Request for Precautionary Measures—Detainees in Guantanamo Bay, Cuba (Apr. 15, 2002), 41 ILM 1015, 1019 (2002).

181 Ergi v. Turkey, 32 Eur. H.R. Rep. 388 (1998).

182 Id. at 431, para. 79.

183 Banković v. Belgium and Others, 123 ILR 94 (2001).

184 Id. at 105, para. 43.

185 Meron, supra note 57, at 247.

186 See, e.g., Sewall, Sarah, An Empty Pledge to Civilians? N.Y. Times, Mar. 21, 2003, at A19 Google Scholar (noting that public concern over civilian casualties in Iraq prompted the U.S. military to publicize its significant efforts to limit “collateral damage”).

187 Hague Regulations, supra note 104, pmbl.

188 Protocol I, supra note 42, Art. 61(l)(k). These civil defense personnel lose their protected status if they perform acts harmful to the enemy. Military personnel serving in civil defense organizations are prisoners of war. Id., Arts. 65(1), 67(2).

189 ICRC Commentary, supra note 9, Art. 3, at 34, 41.

190 Meron, supra note 57, at 267.

191 Id.; see also Asbjørn, Eide, Rosas, Allan, & Meron, Theodor, Combating Lawlessness in Gray Zone Conflicts Through Minimum Humanitarian Standards, 89 AJIL 215 (1995).Google Scholar

192 Protocol II, supra note 27, Art. 1.

193 Id., Art. 2. The declaration of the United Kingdom, made at the time it signed Additional Protocol I, states that the level of intensity of military operations that must be present before the Protocol or the Conventions apply “cannot be less than that required for the application of Protocol I I . . . to internal conflicts.” United Kingdom, Declaration, para, (a), 1125 UNTS 432, 432, available at <http://www.icrc.org/ihl>.

194 In Abella, supra note 113, at 681-84, paras. 152-53, the Inter-American Commission on Human Rights was of the view that common Article 3 did not extend to “riots, mere acts of banditry or an unorganized and short-lived rebellion”; however, the Commission also acknowledged that the line separating an especially violent incident of international disturbances from the application of international humanitarian law principles “may sometimes be blurred and, thus, not easily determined.” See also Hampson, supra note 173, at 67–68, for a discussion of the scope of common Article 3 of the 1949 Geneva Conventions.

195 Protocol II, supra note 27, Art. 3(1).

196 Prosecutor v. Tadić, supra note 8, paras. 96–127.

197 Neither common Article 3 of the 1949 Geneva Conventions nor Additional Protocol II refers to “combatants.” An example of a special agreement extending “treatment” as POWs to combatants can be found in the Bosnia and Herzegovina Agreement No. 1, which states, “Captured combatants shall enjoy the treatment provided for by the Third Geneva Convention.” Agreement No. 1, May 22, 1992, Bosn.-Herz., §2.4, reprinted in Sassoli, Marco & Antoine, A. Bouvier, How Does Law Protect in War? 1112, 1115 (1999).Google Scholar

198 Ford, W.J., Resistance Movements and International Law (IV), Int’l Rev. Red Cross, Jan. 1968, at 7, 12.Google Scholar

199 However, as Meron notes: “There is no agreed-upon mechanism for definitively characterizing situations of violence.” Meron, supra note 57, at 261.

200 Abella, supra note 113, at 684, para. 155.

201 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 168, para. 183 (1995); see also MOIR, supra note 49, at 39.

202 Jochen Abr., Frowein, The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, 1998 Isr. Y.B. Hum. Rts. 1.Google Scholar In assessing the interface between the two normative regimes, Frowein concludes that the law of belligerent occupation has a limited specific jurisdiction over everyone under its jurisdiction. “That means,” he states, “that the obligations under the human rights conventions do apply. However, the specific rules of the Fourth Geneva Convention take precedence regarding specific measures which are justified on the basis of these provisions.” Id. at 11.

205 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. 54, 64, 6 UST 3516, 75 UNTS 287.

204 Hague Regulations, supra note 104, Art. 43.

205 Banković v. Belgium and Others, 123ILR94, 116, para. 80 (2001). For further discussion on the territorial scope of human rights protection, see Fitzpatrick, supra note 33, at 252–55.

206 Coard and Others v. United States, 123 ILR 156, 168, para. 37 (Commission report 1999). 207 Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AJIL 78, 78–79 (1995).

208 Lieber, Francis, Guerrilla Parties Considered with Reference to the Laws and Usages of War, reprinted in Richard Shelly Hartigan, lieber’s code and the Law of War 31, 37 (1983).Google Scholar

209 The expansion of Article 4(2) of Geneva Convention No. 3, supra note 10, to include organized resistance movements is widely seen as an ineffectual attempt to provide POW status to irregular forces carrying out indirect warfare in occupied territory, as it still required the wearing of a fixed, distinctive sign. See also Protocol I, supra note 42, Arts. 43, 44.

210 Address to the Nation [by President George W. Bush] from the U.S.S. Lincoln, Abraham, 39 Weekly Comp. Pres. Doc. 516 (May 5, 2003).Google Scholar However, this did not mean that all combat operations had ended. Waldman, Amy, After the War: Combat; U.S. ‘Still at War,’ General Declares, N.Y. Times, July 4, 2003, at A1.Google Scholar

211 For a discussion of this interface, see Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 97 (1990).Google Scholar

212 Israel claims that die Fourth Geneva Convention does not apply as a matter of conventional law to its control of the “occupied territories,” although the government has indicated its willingness to follow the humanitarian provisions of the Convention. The Israeli government has not contested the application of the 1907 Hague Regulations to those areas. Kretzmer, David, The Occupation of Justice 32–34 (2002)Google Scholar; see also Michael, J. Kelly, Restoring And Maintaining Order in Complex Peace Operations 156–59 (1999)Google Scholar. As Adam Roberts notes, the majority of the international community, and of international legal opinion, has not accepted that die Fourth Geneva Convention is not formally applicable in that case. Roberts, Adam, What Is a Military Occupation? 1984 Brit. Y.B. Int’l L. 249, 282.Google Scholar Recognition of the application of international humanitarian law is reflected in die 2002 United Nations report on events in Jenin and other Palestinian cities. Report of die Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/10, UN Doc. A/ES-10/186, at 5, paras. 11–13; see also Amnesty International, Israel and the Occupied Territories: Shielded from Scrutiny: IDF Violations in Jenin and Nablus 60–65 (Al Index No. MDE15/143/2002, Nov. 2002)Google Scholar; Jenin: IDF Military Operations, 14 Human Rights Watch, Israel, No. 3(E), May 2002, at 10–11, available at <http://hrw.org/reports/2002>..>Google Scholar

213 See Amnesty International, supra note 212, at 62 (indicating that “persons who take direct part in hostilities may temporarily lose their status as protected persons, but they do so only for such time as they take direct part in hostilities”). But see Parks, supra note 112, at 118–20.

214 Remarks on Signing the Homeland Security Act of 2002 (Nov. 25, 2002), 38 Weekly Comp. Pres. Doc. 2090, 2090 (Dec. 2, 2002).Google Scholar

215 National Strategy for Homeland Security, supra note 2, at viii.

216 Id. at 25–28; U.S. Dep’t of Homeland Security, Organization of the Department of Homeland Security, at <http://www.whitehouse.gov/deptofhomeland/sect2.html> (visited Oct 26, 2003). The response designed to secure the United States from terrorist attacks has included the reorganization of government departments into a Department of Homeland Security.

217 Dep’t of Foreign Aff. & Int’l Trade, Canada’s Actions Against Terrorism Since September 11th—Backgrounder, at <http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=l&cat=l&did=1250> (last modified Oct. 30, 2002); Royal Can. Mounted Police, Post-September 11th—The Fight Against Terrorism, at <http://www.rcmpgrc.gc.ca/security/index_e.htm> (last modified Dec. 23, 2003); Can. Security & Intelligence Serv., Counter-Terrorism (Aug. 9, 2002), at <http://www.csis-scrs.gc.ca/eng/operat/ct_e.html>.

218 Protocol I, supra note 42, Art. 43.

219 For example, the United States has a well-developed legal framework governing the use of its armed forces for homeland defense. A study by Paul Schott Stevens concludes that the constitutional grants of power in combination “establish the considerable range of a president’s lawful prerogatives in answering the needs of the nation, most especially in times of grave crisis,” and that “the president has ample legal authority to call upon the armed forces to defend American territory in the event of a sustained or catastrophic terrorist attack.” Paul Schott, Stevens, U.S. Armed Forces and Homeland Defense: the Legal Framework 6 (2001).Google Scholar

220 Protocol I, supra note 42, Art. 90. Human rights principles emphasize transparency in the conduct of investigations. For example, in respect of Iraq, U.S. authorities have been called upon by Amnesty International to establish “a thorough, independent and public investigation” into deaths and injuries resulting from the use of lethal force during demonstrations by Iraqi civilians. Amnesty International, Press Release, Iraq: Death of Civilian Demonstrators Must Be Investigated (Apr. 30, 2003) (AI Index No. MDE 14/103/2003). However, the ability of the parties to a conflict to limit public disclosure of the findings of the Fact-Finding Commission could hamper its effectiveness. Protocol I, supra, Art. 90(5) (c).

221 Robert Kogod, Goldman, International Humanitarian Law: Americas Watch’s Experience in Monitoring Internal Armed Conflicts, 9 Am. U.J. Int’l L. & Pol’y 49, 51 (1993).Google Scholar

222 Abella, supra note 113, at 698, para. 175.

223 Zegveld, supra note 177, at 511 n.21.

224 Françoise, Hampson, Using International Human Rights Machinery to Enforce the International Law of Armed Conflicts, 31 Mil. L. & L. Warrev. 119, 137 (1992).Google Scholar

225 See, e.g., Amnesty International, supra note 212, at 67; Amnesty International, Without Distinction—Attacks on Civilians by Palestinian Armed Groups (AI Index No. MDE 02/003/2002, July 2002); see also Crisis of Impunity: the Role of Pakistan, Russia, and Iran in Fueling the Civil War 18–22, 13 human rights watch, Afghanistan, No. 3 (C) July 2001, available at <http://www.hrw.org/reports/2001> (outlining the international humanitarian law violations by both the Taliban and the United Front during the Afghan civil war).

226 Violent Response: the U.S. Army in Al-Falluja, 15 Human Rights Watch, Iraq, No. 7 (E), June 2003, available at <http://www.hrw.org/reports/2003> [hereinafter Falluja Report]. The quotation that appears as the epigraph to this article is taken from page 1 of the report.

227 Id. at 2.

228 Id. a(2-3. The recommendations refer to standards of international humanitarian law. The link to human rights norms appears to arise in the context of the occupying power’s obligation to restore and ensure public order and safety, found in Article 43 of the Hague Regulations, supra note 104. The report states that” [a]chieving security must however be in conformity with international humanitarian law and human rights standards.” Id. at 3. As noted, it is not universally accepted that human rights norms apply as a matter of law, although logic points to their application as a matter of policy, morality, and practicality.

229 Regarding the involvement of possible members of an organized resistance, the report quotes the mayor of Falluja (who was not present at the time of the shooting but had collected information in the town) as stating:

Id. at 13.

230 The declaration of the close of major combat operations had not been made until May 1, 2003, and even then that declaration did not mean that the armed conflict was over. See supra note 210 and corresponding text. Notwithstanding the ongoing military operations, the Falluja Report, supra note 226, at 13, highlights the “law enforcement” role of U.S. forces:” [T]he presence of provocateurs in the crowd does not negate the responsibility of U.S. soldiers to prevent civilian casualties to the greatest extent possible, and to ensure that their response when carrying out law enforcement functions is proportionate and discriminate.”

231 Basra: Crime and Security Under British Occupation, 15 Human Rights Watch, Iraq, No. 6 (E),June 2003, at 19, available at <http://www.hrw.org/reports/2003> (noting that “by all accounts, the focus of coalition forces was on force protection responding robustly to any use of weapons, while essentially ignoring other incidents of lawlessness and looting”).

232 Compare Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, Art. 1(5), S. Treaty Doc. No. 21, 103d Cong. (1993), 32 ILM 800 (1993) (“Each State Party undertakes not to use riot control agents as a method of warfare.”), with id., Art. II (9) (d) (among purposes not prohibited by the Convention are “ [1] aw enforcement including domestic riot control purposes”).

233 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8).

234 Hampson, supra note 224, at 127.

235 It has been noted that the Court’s reasoning in the Nuclear Weapons Advisory Opinion cannot be generalized with regard to human rights law, as it was specifically directed toward the right to life. Thus, human rights treaties in general would not have to be interpreted in light of international humanitarian law. Frowein, supra note 202, at 12.

236 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160-61, para. 149 (1995).

237 Protocol I, supra note 42, Art. 35(2).

238 Id., Art. 51(5) (b).

239 In calling for a process for analyzing the impact of targeting decisions, Sarah Sewall has suggested that a “complete collateral damage assessment would include fully investigating serious incidents during the conflict and following up with a public postwar survey of the campaign’s impact on civilians.” That process would involve the integration of a civilian collateral damage assessment into the formal lessons-learned process. Sewall, supra note 186. The challenge would remain, however, of determining what would make an incident serious enough to warrant its inclusion in such an assessment.

240 However, as Hays Parks notes, there is no obligation to attempt to capture rather than attack an enemy in cases of armed conflict. Parks, supra note 108, at 7 n.6. Here, a distinction has to be made between making a policy choice of seeking to arrest an enemy combatant (perhaps for intelligence purposes) and the issue of the legal authority to use lethal force.

241 This broader sense of responsibility appears unlikely to occur unless there develops a more global sense of community, such as the “cosmopolitan patriotism” suggested by Falk, supra note 12, at 144–46.