1 Old Testament, The story of David and Goliath, 1 Samuel, Chapters 16–18.

2 See Münkler, Herfried, Die neuen Kriege, 6th ed, Rowohlt Verlag, Reinbeck bei Hamburg, 2003, pp. 63ff.Google Scholar

3 See Laqueur, Walter, Krieg dem Westen. Terrorismus im 21. Jahrhundert. Propyläen-Verlag, Berlin 2003.Google Scholar

4 At the Casablanca Conference (14–24 January 1943) Winston Churchill and Theodore Roosevelt decided to continue with operations in the Mediterranean once they had driven the Germans and Italians out of North Africa. This decision was in accordance with Churchill's preference for an attack through the “under-belly of the Axis” instead of a more direct approach through northwest Europe into Germany in 1943 (often misquoted as: “the soft under-belly of the Axis”).

5 See Metz, Steven, “La guerre asymétrique et l'avenir de l'Occident”, Politique Etrangere, 1/2003, pp. 26–40, p. 30.Google Scholar

6 Metz, ibid., pp. 31–33.

7 See especially a series of articles on asymmetrical warfare with regard to the idea of a revolution in military affairs (RMA) in the US post-Cold War policy debate. Asymmetric Warfare (RMA Debate in Project on Defense Alternatives), available online at: <http://www.comw.org/rma/fulltext/asymmetric.html> (visited on 6 July 2004). From the abundant (US) literature on the subject see in particular: Roger Barnett, W., Asymmetrical Warfare: Today's Challenge to US Military Power, Brassey's Inc., Virginia, 2003Google Scholar; Courmont, Barthélemy and Ribnikar, Darko, Les guerres asymétriques, Presse Universitaire de France, Paris, 2002Google Scholar; Baud, Jacques, La Guerre asymétrique ou la défaite du vainqueur, Ed. du Rocher, , Paris, 2003Google Scholar; Cordesman, Anthony H., Terrorism, Asymmetric Warfare, and Weapons of Mass Destruction; Defending the U.S. Homeland. Praeger, Westport, 2002Google Scholar: The Four Thrusts Meet Asymmetric Threat, Attack Database, Achieve Interoperability, Revitalize Work Force, Defense Intelligence Agency, Washington, 2001, available online at: <http://www.dia.mil/This/Fourthrusts/index.html> (visited on 6 July 2004); The First War of the 21st Century: Asymmetric Hostilities and the Norms of Conduct, Strategic and Defence Studies Centre, Working Paper No. 364, Australian National University, Canberra, 2001; Rogers, Paul, Political Violence and Asymmetric Warfare, Brookings Institution, Washington, 2001Google Scholar, available online at: <http://www.brook.edu/dybdocroot/fp/projects/europe/forumpapers/rogers.htm> (visited on 6 July 2004); Schröfl, Josef and Pankratz, Thomas (eds), Asymmetrische Kriegfuhrung — ein neues Phänomen der International Politik?, Nomos Verlagsgesellschaft, Baden-Baden, 2003Google Scholar; Muraviec, Laurent, La guerre au XXI^e siècle, Paris 2001Google Scholar; Conesa, Pierre (éd.), “La sécurite internationale sans les Etats”, Revue internationale et stratégique, No. 51, Autumn 2003.CrossRefGoogle Scholar

8 Even Chinese military officers are trying “to propose tactics for developing countries, in particular China, to compensate for their military inferiority vis-à-vis the United States during a high-tech war”. Qiao/Liang/WangXiangsui, Unrestricted Warfare, Bejing, 1999 (cited in Herfried Münkler, op. cit. (note 2), p. 276, in footnote 21). On the same subject see also Bruzzone, Arthur, “Asymmetrical warfare cuts both ways” American Daily, 3 January 2004Google Scholar, available on line at: <http://www.americandaily.com/article/1837> (visited on 6 July 2004).

9 See also “Asymmetric Warfare”, The USS Cole, and the Intifada, The Estimate, Vol. XII, Number 22, 3 November 2000Google Scholar, available at <http://www.theestimate.eom/public/110300.html> (visited on 30 January 2005).

10 Ivan Safranchuk, Chechnya: Russia's Experience of Asymmetrical Warfare, available online at <http://www.saag.org/papers7/paper619.html> (visited on 6 July 2004).

11 Paul Collier and Hanke Hoeffer (Greeds and Grievances in Civil War, 2001, published in Oxford Economic Papers, Vol. 56, 2004, pp. 563–595) examine the distinction between greed and grievance as the two main motivations for civil wars. The grievance aspect (including inequality, lack of political rights, and ethnic or religious divisions) is well known and is covered in numerous political science studies. In Collier and Hoeffler's statistical investigation of civil wars from 1960 to 1999, they find that greed-related explanations (access to finance, including the scope for extortion of natural resources, but also other opportunity factors such as geography) have a greater explanatory power than grievance and economic viability appears to them to be the predominant systematic explanation of rebellion.

12 See in particular The 9–11 Commission Report. Final Report of the National Commission on Terrorist Attacks upon the United States, official government edition, available online at <http://www.gpoaccess.gov/911/> (visited on 27 July 2004) (The 9–11 Commission Report), especially Chapter 2 (“The foundations of new terrorism”), pp. 48–70.

13 In an annual report on threats to the United States, Porter Goss, director of central intelligence, told the Senate intelligence committee: “It may be only a matter of time before al-Qaeda or other groups attempt to use chemical, biological, radiological or nuclear weapons.” International Herald Tribune, 17 February 2005.

14 See United Nations Security Council Resolution 1373 of 28 September 2001, UN Doc. S/RES/1373 (2001); Christopher Greenwood, War, Terrorism, and International Law, pp. 505–530, in: Current Legal Problems 2003 Volume 56, February 2004, agreeing with the resolution (pp. 516–518). The argument can also be made from an effects perspective (“gravity”, “significant scale”), like that adopted by the International Court of Justice (ICJ) Military and Paramilitary Activities in and against Nicaragua (Nicaragua, v. United States.), Merits, 27 June 1986, ICJ Reports 1986, para. 195. The attacks by non-state actors can trigger the right to self-defense under the Charter, but do not create a state of war in a legal sense (see Paust, Jordan J., “Use of armed force against terrorists in Afghanistan, Iraq and beyond”, Cornell International Law Journal, Vol. 35, No. 3, 2002, sections 534–539Google Scholar).

15 “Calling this struggle a war accurately describes the use of American and allied armed forces to find and destroy terrorist groups and their allies in the field, notably in Afghanistan. The language of war also (emphasis added) evokes the mobilization for a national effort.” (The 9–11 Commission Report (footnote 12), p. 363).

16 Art. 1(2) Protocol II Additional to the Geneva Conventions (applicable to non-international armed conflicts) defines “isolated and sporadic acts of violence and other acts of similar nature” “as not being armed conflicts”. Difficulties to determine the threshold of applicability of humanitarian law apply in many other situations. Covert operations in international armed conflicts are difficult to attribute to a State in international armed conflicts and in non-international armed conflicts according to Art. 3 of the Geneva Conventions, the organisational level of the parties to a conflict may widely vary in time and there is rarely a single event which indicates the beginning or end of hostilities.

17 The 9–11 Commission Report, (footnote 12), p. 67: “Most in the core group swore fealty (or bayat) to bin Laden. Other operatives were committed to Bin Laden or to his goals and would take assignments for him.” See also p. 55 (on recruitment of new adherents) and pp. 145 ff. (on the enterprising al-Qaeda). The German Bundeskriminalamt estimated that around 70,000 fighters were trained and educated in al-Qaeda camps in Afghanistan (cf. Case against Munir al-Motassadeq, cf. Reuters, 4 January 2005).

18 E.g. the Jordanian Abu Mussab al-Zarqawi fighting with the Tawhid wal-Jihad Group in Iraq has pledged allegiance to Osama bin Laden and al-Qaeda (see Reuters, Iraq-Phantom Zarqawi in marriage of infamy with bin Laden, 18 October 2004).

19 George Tenet who headed the US-Central Intelligence Agency testified in April 2004 that militant jihadi groups operate in no fewer than 68 countries (up from 40 in 2001). In Iraq alone may pursue what they consider as jihad, see <http://fpc.state.gov/fpc/31428.htm> (visited on 15 November 2004). According to The Economist (8 July 2004, quoting Adrian Karim), there are some 36 different Sunni groups owing alliance to the Salafis, Suffis, Muslim Brothers or tribal sheiks and a half a dozen Shia rebel groups operating ion Iraq.

20 See Bugnion, François, “Guerre juste, guerre d'agression et droit international humanitaire”, International Review of the Red Cross, Vol. 84, No. 847, September 2002, pp. 523–546.CrossRefGoogle Scholar

21 See ICJ Nicaragua cases (Merits), op.cit (footnote 14), para. 73.

22 See e.g. Albreight, Madeleine K., “United Nations”, Foreign Policy, September/October 2003, pp. 16–24Google Scholar; Berdal, Mats, “The UN Security Council: Ineffective but indispensable”, Survival: The IISS Quarterly, Vol. 45 No. 2, Summer 2003, pp. 7–30CrossRefGoogle Scholar; Bothe, Michael, “Terrorism and the legality of pre-emptive force”, European Journal of International Law, Vol. 14, 2003, pp. 227–240CrossRefGoogle Scholar; Gill, Terry D., “The eleventh of September and the right of self-defense”, in: Here, Wybo P. (ed.), Terrorism and the Military, International Legal Implications, TMC Asser Press, The Hague, 2003, pp. 23–37CrossRefGoogle Scholar; Christopher Greenwood, “War, terrorism and international law”, op.cit., pp. 515–523; Randelzhofer, Albrecht, “Article 51”, in: Simma, Bruno (ed.), The Charter of the United Nations: A Commentary, 2nd ed., Oxford University Press, Oxford, 2002, p. 802Google Scholar; Sofaer, Abraham, “On the necessity of pre-emption”, European Journal of International Law, Vol. 14, 2003, pp. 209–226CrossRefGoogle Scholar; Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, Penguin 2005; Michael N. Schmitt, “Deconstructing October 7th: A case study in the lawfulness of counterterrorist military operations”, in: Terrorism and International Law, Challenges and Responses, International Institute of Humanitarian Law, and George C. Marshall, European Center for Security Studies, 2003, pp. 39–49; Shashi Tharoor, “Why America still needs the United Nations”, Foreign Affairs, September/October 2003.

23 See for example Michael Novak, Asymmetrical Warfare & fust War: A Moral Obligation, February 2003, available online at <http://nationalreview.com/novak/novak021003.asp> (visited on 6 July 2004).

24 See paragraph 5 of the preamble to 1977 Additional Protocol I to the Geneva Conventions of 1949.

25 Rousseau, Jean-Jacques, The Social Contract, translated by Betts, Christopher, Oxford University Press, Oxford and New York, 1994Google Scholar, Book I, ch. IV, p. 51 (original French edition, Du Contrat Social, 1762).

26 See Article 3 (4) common to the Geneva Conventions of 1949.

27 On the balance between freedom and security, see Ignatieff, Michael, The Lesser Evil. Political Ethics in an age of Terror, Princeton University Press 2004Google Scholar and Heymann, Philip B., Kayyem, Juliette N., Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism, National Memorial Institute for the Prevention of Terrorism (MIPT), December 2004Google Scholar, <http://www.mipt.org/Long-Term-Legal-Strategy.asp> (visited on 30 January 2005).

28 However, reciprocity invoked as an argument not to fulfil the obligations of international humanitarian law is prohibited.

29 See Article 4. A.2 (d) of the Third Geneva Convention of 1949, and also Pfanner, Toni, “Military uniforms and the law of war”, International Review of the Red Cross, Vol. 86, No. 853, March 2004, p. 109.Google Scholar

30 Lauterpacht, Hersch, The Limits of Operation of the Laws of War, British Yearbook of International Law, Vol. 30 (1953), p. 212.Google Scholar

31 This is valid especially for the so-called “Hague Law”, see Reisman, W. Michael, “Aftershocks: Reflections on the implications of September 11”, Yale Human Rights & Development Law Journal, Vol. 6, 2003, p. 97Google Scholar: “The implicit ethic of the Hague law is that conflict should be symmetrical and that an adversary that does not fight accordingly is not entitled to the protection of the laws of war>.

32 See “A letter from Osama bin Laden to the American people”. The letter appeared first on the Internet in Arabic on 17 November 2002 and was subsequently translated into English. Available online at <http://observer.guardian.co.uk/worldview/story/0,11581,845725,00.html> (visited on 6 July 2004).

33 US Supreme Court, Hamdi v. Rumsfeld 124 S. Ct. 2633 (28 June 2004), available on-line <http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf> (visited on 15 November 2004) and Martinez, Jenny S., V. Rumsfeld, Hamdi, American journal of International Law, Vol. 98 No. 4, October 2004, pp. 782–788CrossRefGoogle Scholar. See also the Supreme Court's decision Rasul v. Bush 124 S. Ct. 2686 (28 June 2004) (cf. Sloss, David L., American Journal of International Law, Vol. 98 No. 4, October 2004, pp. 788–798)CrossRefGoogle Scholar.

34 See <http://www.defenselink.mil/releases/2004/nr20040707-0992.html> (visited on 15 November 2004).

35 The federal judge ruled that the military commissions set up to try detainees at the US naval base in Guantánamo are not in accordance with the Geneva Conventions and should be stopped, “unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners-ot- war under Article 4 of the Geneva Convention (‥)”, see Hamdan v. Rumsfeld, Civil Action No. 04–1519, US District Court, District of Columbia, 8 November 2004, available at <http://www.dcd.uscourts.gov/04-1519.pdf> (visited on 15 November 2004). According to the Washington Post (9 November 2004), military officers halted commission proceedings in the light of the ruling. The administration announced that it will ask a higher court for an emergency stay and reversal of the decision.

36 See as examples the papers on the laws of war by David B. Rivkin Jr., Lee A. Casey and Darin R. Bartram, available at <http://www.fed-soc.org/lawsofwar> (visited on 15 November 2004), Dershowitz, Alan, “The laws of war weren't written for this war”, Wall Street Journal, 12 February 2004.Google Scholar

37 E.g. a new organization, called the Strategic Support Branch, designed to operate without detection and under the defense secretary's direct control, deploys small teams of case officers, linguists, interrogators and technical specialists alongside newly empowered special operations forces (cf. “The Secret Unit Expands Rumsfeld's Domain”, Washington Post, 23 January 2005). The creation of a new unit was confirmed in a statement from Pentagon spokesman Lawrence DiRita (on Intelligence Activities of the Defense Department), 23 January 2005, cf. <http://www.defenselink.mil/releases/2005/nr20050123-2000.html> (visited on 30 January 2005). On counterterrorism, see also Jonathan Stevenson, Counter-terrorism: Containment and Beyond, Adelphi Paper 367, International Institute for Strategic Studies, 2004.

38 See e.g. Dworkin, Anthony, Law and the campaign against terrorism: The view from the Pentagon, 16 December 2002Google Scholar, <http://www.crimesofwar.org/print/onnews/pentagon-print.html> (visited on 6 July 2004).

39 Article 60.5 of the 1969 Vienna Convention on the Law of Treaties.

40 See ICJ, Nicaragua v. United States, Merits, op.cit. (footnote 14), para. 218. (“Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’ (ICJ, Corfu Channel, Merits, ICJ Reports 1949, p. 22; paragraph 215 above”.)). See also the confirmation in ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, para. 157.

41 The International Criminal Tribunal for the former Yugoslavia (ICTY), has denned “armed conflict” as existing “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” Prosecutor v. Tadic, No. IT-94–1, Decision on the Defense, Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.

42 Green, Leslie C., The Contemporary Law of Armed Conflict, 2nd ed., Manchester University Press, — Manchester, 1999, p. 70Google Scholar. See also Roth, Kenneth, “The law of war in the war on terror, Washington's abuse of enemy combatants”, Foreign Affairs, January/February 2004, p. 2Google Scholar; Rona, Gabor, “Interesting times for international humanitarian law: Challenges from the ‘war on terror’”, Fletcher Forum of World Affairs, Vol. 27, 2003, p. 57Google Scholar.

43 Christopher Greenwood, op.cit. (footnote 14), p. 529.

44 See also Roberts, Anthea, Righting Wrongs or Wronging Rights? The United States and Human Rights Post-September 11, European journal of International Law, Vol. 15, September 2004, pp. 742.CrossRefGoogle Scholar

45 See Sassòli, Marco, Use and Abuse of the Laws of War in the “War on Terror” Law & Inequality: A Journal of Theory and Practice, Vol. XXII No. 2, Summer 2004, pp. 195–221Google Scholar, and Watkin, Kenneth, “Controlling the use of force: A role for human rights norms in contemporary armed conflict”, American Journal of International Law, Vol. 98, No. 1, January 2004, pp. 1–34CrossRefGoogle Scholar.

46 For an institutional view of the ICRC on related issues see the ICRC's report on “International humanitarian law and the challenges of contemporary armed conflicts”, submitted to the 28th International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2003, published in International Review of the Red Cross, Vol. 86, No. 853, March 2004, pp. 213–244.CrossRefGoogle Scholar

47 See Pfanner, Toni, Le rôle du CICR dans la mise en oeuvre du droit international humanitaire, Law in Humanitarian Crises, Official Publications of the European Communities, 1995, Vol. I, pp. 177–248.Google Scholar

48 See Blondel, Jean-Luc, La globalisation: approche du phénomène et ses incidences sur l'action humanitaire, International Review of the Red Cross, Vol. 86 No. 855, Septembre 2004, p. 502.Google Scholar

49 See in particular Article 126 of the Third Geneva Convention (visits to prisoners of war) and Article 143 of the Fourth Geneva Convention of 1949 (visits to civilian internees).

50 See Anderson, Kenneth, Humanitarian Inviolability in Crisis: The meaning of Impartiality and Neutrality for UN. and Agencies Following the 2003–2004 Afghanistan and Iraq Conflicts, Harvard Human Rights Journal, Vol. 17 (2004), pp. 41–74Google Scholar, especially on contacts with organizations classified as terrorist organizations. No peace or accommodation, but “the hard won practical wisdom” imposes such contacts (pp. 63–66). A possible strategy to negotiate with or at least to bind in organizations such as al-Qaeda is outlined by Helmuth Fallschellel, Soll man mit al Quaida verhandeln? Anmerkungen zu einem Tabu, available online at <http://www.freitag.de/2003/07/03071601.php> (visited on 6 July 2004); see also Frei, Bruno S., Dealing with Terrorism — Stick or Carrot, Edward Elgar, Cheltenham (UK) and Northampton (USA) 2004CrossRefGoogle Scholar.

51 Krahenbühl, Pierre, The ICRC's approach to contemporary security challenges: A future for independent and neutral humanitarian action, International Review of the Red Cross, Vol. 86, No. 855, September 2004, pp. 505–514, in particular p. 508.CrossRefGoogle Scholar

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53 Similarly Kenneth Anderson, op. cit. (footnote 50), on reconstruction and neutrality (p. 58), Anderson makes a distinction from immediate relief (p. 74).

54 See Harroff-Tavel, Marion, “Do wars ever end? The work of the International Committee of the Red Cross when the guns fall silent”, International Review of the Red Cross, Vol. 85, No. 851, September 2003, pp. 465–496.CrossRefGoogle Scholar

55 Contrary to governmental humanitarian action or so-called “NGO's of Wilsonian tradition” with close identification with the policy of the respective government, see Stoddard, Abby, Humanitarian NGO's: challenges and trends, Humanitarian Policy Group Report, No. 14 July 2003 (Joanna Macrae and Adele Harmer, Eds.), pp. 25–35.Google Scholar

56 Schweizer, Beat, Moral dilemmas for humanitarianism in the era of “humanitarian” military interventions, International Review of the Red Cross, Vol. 86 No. 855, September 2004, pp. 547–564CrossRefGoogle Scholar. Terry, Fiona, Condemned to Repeat? The Paradox of Humanitarian Action, Cornell University Press, Ithaca NY, 2002Google Scholar rejects “the traditional concept of neutrality as on the one hand morally repugnant and on the other hand unachievable in the complex political emergencies of the post-Cold War period”, (pp. 20–23).

57 See Rana, Raj, Contemporary challenges in the civil-military relationship: Complementarity or incompatibility?, International Review of the Red Cross, Vol. 86 No. 855, September 2004, pp. 565–587CrossRefGoogle Scholar, and Studer, Meinrad, The ICRC and civil-military relations in armed conflict, International Review of the Red Cross, Vol. 83, No. 842, June 2001, pp. 367–391.Google Scholar

58 On the integration of politics and humanitarian action see in particular Nicolas de Torrente, Humanitarian Action Under Attack: Reflections on the War, Iraq, Harvard Human Rights Journal, Vol. 17 (2004), pp. 1–29Google Scholar (warning of the dangers of co-opting humanitarian action by States) and O'Brian, Paul, Politicized Humanitarianism: A Response to Nicolas de Torrente, Harvard Human Rights journal, Vol. 17 (2004), pp. 31–37Google Scholar, who doubts about the apolitical character of humanitarian action.

59 See Resolution 4 adopted by the 26th International Conference of the Red Cross and Red Crescent “Principles and actions in international humanitarian assistance and protection”, in particular para. G.2 (c), published in: International Review of the Red Cross, Vol. 36, No. 310, January/February 1996, pp. 74–75.Google Scholar

60 See Plattner, Denise, “The neutrality of the ICRC and the neutrality in humanitarian assistance”, International Revue of the Red Cross, Vol. 36, No. 311, March-April 1996, pp. 161–180CrossRefGoogle Scholar, and Minear, Larry, The theory and practice of neutrality: Some thoughts on the tensions, International Review of the Red Cross, Vol. 81 No. 833 March 1999, pp. 63–71.CrossRefGoogle Scholar

61 See the preamble and Article 1.2 of the Statutes of the International Red Cross and Red Crescent Movement.

62 See Johnson, Chris, Afghanistan and the war on terror, Humanitarian Policy Group Report, No. 14 July 2003 (Joanna Macrae and Adele Harmer, Eds.), pp. 49–62Google Scholar; Minear, Larry, The Humanitarian Enterprise, Kumarian, Bloomfield, CT, 2002, pp. 189Google Scholar ff. (on terrorism and humanitarian action).

63 Kellenberger, Jakob, Speaking out or remaining silent in humanitarian work, International Review of the Red Cross, Vol. 86 No. 855, September 2004, pp. 600–601Google Scholar calls the access to the victims the ICRC's top priority.