1 See in general Kennedy, David, ‘One, two, three, many legal orders: legal pluralism and the cosmopolitan dream’, in New York University Review of Law and Social Change, Vol. 31, 2006–2007, p. 642Google Scholar.

2 The US Army Stability Operations Field Manual 3–07 (The Stability Ops Manual), University of Michigan Press, Ann Arbor, 2009, para. 3-22.

3 David Kennedy, Of War and Law, Princeton University Press, Princeton, 2006, p. 159.

4 Act of 18 June 1878 (codified in 18 US Code § 1385 (1994)): ‘Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both’.

5 The Commander's Handbook on the Law of Naval Operations, US Navy, NWP 1–14M, July 2007, para. 3.11.3.1.

6 Another standard, though exceptional, occasion when the military are used in a law enforcement role is in relief and reconstruction efforts after natural disasters. See Carlin, Evan, ‘Australian Defence Force experience with non-government organizations in humanitarian assistance and disaster relief operations’, in Carsten, Michael (ed.), global Legal Challenges: Command of the Commons, Strategic Communications and Natural Disasters, US Naval War College International Law Studies Series, Vol. 83, 2007, p. 267Google Scholar.

7 Bronitt, Simon and Stephens, Dale, ‘“Flying under the radar”: the use of lethal force against hijacked aircraft: recent Australian developments’, in Oxford University Commonwealth Law Journal, Vol. 7, No. 2, 2007, p. 265CrossRefGoogle Scholar.

8 UN Security Council (UNSC) Resolution 776 (1992), 14 September 1992, para. 2.

9 UNSC Resolution 1270 (1999), 22 October 1999, para. 8(b).

10 UNSC Resolution 766 (1992), 21 July 1992, para. 4.

11 Draper, Gerald, ‘The Geneva Conventions of 1949’, in Académie de Droit International, Recueil des Cours, Vol. 1, 1965, p. 89Google Scholar; see also the ICRC commentary on Article 3 common to the 1949 Geneva Conventions, available at http://www.icrc.org/IHL.nsf/COM/365–570006?OpenDocument (last visited 2 May 2010), at p. 49, which states that a factor relevant to determining the existence of an armed conflict is whether ‘the legal Government is obliged to have recourse to the regular military forces against insurgents’.

12 UNSC Resolution 1272 (1999), 25 October 1999.

13 Kelly, Michael J., McCormack, Timothy L. H., Muggleton, Paul, and Oswald, Bruce M., ‘Legal aspects of Australia's involvement in the International Force in East Timor’, in International Review of the Red Cross, Vol. 83, No. 841, March 2001, p. 101Google Scholar.

14 Michael G. Smith and Moreen Dee, Peacekeeping in East Timor: The Path to Independence, Lynne Rienner Publishers, Boulder, CO, 2003, p. 83.

15 The Stability Ops Manual, above note 2.

16 Ibid., para. 4–47.

17 Ibid., p. viii.

18 Ibid., para. 1–9: ‘In the decade after the fall of the Berlin Wall, the Army led or participated in more than 15 stability operations’.

19 US Department of Defense (DoD) Directive 3000.05 of 28 November 2005, at para. 4.2, expressly states DoD policy regarding stability operations as follows: ‘Stability operations are conducted to help establish order that advances US interests and values. The immediate goal often is to provide the local populace with security, restore essential services, and meet humanitarian needs. The long-term goal is to help develop indigenous capacity for securing essential services, a viable market economy, rule of law, democratic institutions, and a robust civil society’.

20 William Easterly, ‘J'accuse: the US Army development delusion’, Aid Watch, 18 June 2009, available at http://aidwatchers.com/2009/06/j%E2%80%99accuse-the-us-army%E2%80%99s-development-delusions/ (last visited 7 May 2010), where the author states ‘The 2009 US Army Stability Operations Field Manual is remarkably full of utopian dreams of transforming other societies into oases of prosperity, peace, and democracy through the coordinated use of military force, foreign aid, and expert knowledge’.

21 David Kilcullen, The Accidental Guerrilla, Oxford University Press, New York, 2009, pp. 129 and 143.

22 Taken from Dick Pregent, Rule of Law Capacity Building in Iraq, forthcoming in Vol. 86 of the US Naval War College International Law Studies Series.

23 See generally Lon L. Fuller, The Morality of the Law, revised edition, Yale University Press, 1969.

24 D. Pregent, above note 22.

25 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305 – S/2000/809, para. 48.

26 Hitoshi Nasu, International Law on Peacekeeping: A Study of Article 40 of the UN Charter, Martinus Nijhoff Publishers, Leiden, 2009, pp. 17–27.

27 Ibid., pp. 27–35.

28 Ibid., p. 15.

29 Ibid., pp. 184–188.

30 UN Secretary-General's Bulletin, ‘Observance by United Nations forces of international humanitarian law’, UN Doc. ST/SGB/1999/13, 6 August 1999, available at http://www1.umn.edu/humanrts/instree/unobservance1999.pdf (last visited 1 June 2010).

31 Ibid., Section 1.1: ‘The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence’.

32 See for example Mohamed Ali et al. v. Public Prosecutor (1968), [1969] AC 430.

33 Watkin, Kenneth, ‘Controlling the use of force: a role for human rights norms in contemporary armed conflict’, in American Journal of International Law, Vol. 98, January 2004, pp. 17–22CrossRefGoogle Scholar.

34 See European Court of Human Rights, McCann and others v. The United Kingdom, Series A, No. 324, Application 18984/91 (1995), in which a majority of the European Court of Human Rights determined that there had been a breach of Article 2-2 of the European Convention on Human Rights by the failure of British authorities to arrest suspected IRA terrorists before the point in time where the application of lethal force became inevitable.

35 The principle of proportionality is outlined in Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, in which Article 51(5)(b), under the heading ‘Protection of the civilian population’, prohibits indiscriminate attacks as, inter alia, ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.

36 See generally Dale Stephens, The Use of Force in Peacekeeping Operations: The East Timor Experience, Asia Pacific Centre for Military Law, Melbourne, 2005.

37 Protocol I, above note 35, Art. 51(3); Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Art. 13(3); Article 3 common to the four Geneva Conventions of 12 August 1949.

38 D. Pregent, above note 22.

39 See generally David Kaye, ‘Complexity in the law of war’, in Russell A. Miller and Rebecca M. Bratspies (eds), Progress in International Law, Martinus Nijhoff Publishers/Brill Academic, Leiden, 2008, p. 681; Berman, Nathaniel, ‘Privileging combat? Contemporary conflict and the legal construction of war’, in Columbia Journal of Transnational Law, Vol. 43, No. 1, 2004–2005Google Scholar, in which the author contends that the law of armed conflict is a discourse of construction, contestation, and strategic instrumentalization; Jochnick, Chris and Normand, Roger, ‘The legitimation of violence: a critical analysis of the Gulf War’, in Harvard International Law Journal, Vol. 35, No. 2, 1994, p. 387Google Scholar.

40 Herbert Lionel Adolphus Hart, The Concept of Law, 2nd edn, Oxford University Press, Oxford, 1997.

41 Neil Duxbury, Patterns of American Jurisprudence, Clarendon Press, Oxford, 1997, pp. 65–161.

42 D. Kennedy, above note 1, p. 166.

43 Lieutenant General Sir Kiszely, John, ‘Post-modern challenges for modern warriors’, in Australian Army Journal, Vol. 5, No. 2, 2008, p. 182Google Scholar.

44 For example, when ratifying Additional Protocol I, New Zealand declared: ‘In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57 … the term “military advantage” involves a variety of considerations, including the security of attacking forces’. A similar declaration was made by Australia. While not a party to Additional Protocol I, the United States has included in The Commander's Handbook on the Law of Naval Operations the following commentary: ‘Military advantage may involve a variety of considerations, including the security of the attacking Force’.

45 The U.S Army/Marine Corps Counterinsurgency Field Manual 3-24/3-33.5 (COIN Manual), University of Chicago Press, Chicago, 2007, p. xxv.

46 Ibid., para. 1–149.

47 Ibid., para. 1–153.

48 Ibid., para. 1–150.

49 Ibid., para 1–151.

50 Luttwak, Edward, ‘A post-heroic military policy’, in Foreign Affairs, Vol. 75, No. 4, 1996, p. 33CrossRefGoogle Scholar.

51 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Law, Geneva, 2009, available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf (last visited 10 May 2010).

52 Multi-National Force–Iraq (MNF-I) Guidelines as contained in Thomas Ricks, The Gamble, Penguin Press, New York, 2009, Appendix D, p. 369, provides: ‘We cannot kill our way out of this endeavor. We and our Iraqi partners must identify and separate the “reconcilable” from the “irreconcilables” through engagement, population control measures, information operations and political activities. We must strive to make reconcilables a part of the solution, even as we identify, pursue, and kill, capture or drive out the irreconcilables’.

53 D. Kilcullen, above note 21, p. 38.

54 COIN Manual, above note 45, para. 7–32.

55 Ibid., para. 7–37.

56 Ibid., p. xxv.

57 NATO/ISAF Tactical Directive, 6 July 2009, available at http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf (last visited 10 May 2010).

58 D. Kilcullen, above note 21, pp. 128–154.

59 T. Ricks, above note 52, pp. 50–51.

60 Ibid., pp. 200–227.

61 Joshua D. Greene, ‘The secret joke of Kant's soul’, in Walter Sinnot-Armstrong (ed.), Moral Psychology, Vol. 3, The Neuroscience of Morality, Emotion, Disease and Development, MIT Press, Cambridge, MA, 2007, pp. 35–48.