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On the Jus ad Bellum and Jus in Bello of Operation Enduring Freedom

Published online by Cambridge University Press:  28 February 2017

Dino Kritsiotis
Dino Kritsiotis*
Affiliation:
On sabbatical leave from the University of Nottingham, Fletcher School of Law and Diplomacy, Tufts University
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Type
Humanitarian Law on the Conflict in Afghanistan
Information
Proceedings of the ASIL Annual Meeting , Volume 96 , 2002 , pp. 35 - 41
Copyright
Copyright © American Society of International Law 2002

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References

1 Greenwood, Christopher, The Relationship Between ius ad bellum and ius in bello, 9 Rev. Int’l Stud. 221 (1983)CrossRefGoogle Scholar (described, further, at 233, as “distinct branches of international law”). See, further James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 166 (2002).

2 37 ILM 999 (1998).

3 Adam Roberts & Richard Guelff, Documents on the Laws of War 670 (3d ed., 2000). See, further, the conclusion reached in the Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign Against the Federal Republic of Yugoslavia, available at <www.un.org/icty/pressreal/nato061300.htm>. (“As a matter of practice, which we consider to be in accord with the most widely accepted and reputable legal opinion, we in the [Office of the Prosecutor] have deliberately refrained from assessing jus ad bellum issues in our work and focused exclusively on whether or not individuals have committed serious violations of international humanitarian law as assessed within the confines of the jus in bello”) (paragraph 34).

4 United States v. List et. al. (1948) 8 Law Reports of Trials of War Criminals 34, 59; Re Christiansen (1948) A.D. Case No. 121.

5 Thomas M Franck, Fairness in International Law and Institutions 251 (1995).

6 1125 UNTS 3 (1979) (emphasis added).

7 Franck, Thomas M., Terrorism and the Right of Self-Defense, 95 AJIL 839 (2001)CrossRefGoogle Scholar.

8 Michael Ignatieff, The Warrior’s Honor: Ethnic War and the Modern Conscience 148 (1998). See also Michael Howard, Temperamenta Belli: Can War Be Controlled? in Restraints on War: Studies in the Limitation of Armed Conflict 1, 5 (Michael Howard ed., 1979).

9 In Re Austötter and Others, 6 War Crimes Reps. (1948), 1. See, further, Lauterpacht, Hersch, The Limits of the Operation of the Law of War, 30 British Y.B. Int’l L. 206, 211-24 (1953)Google Scholar.

10 SC Res. 1368, September 12, 2001.

11 SC Res. 1373, September 28, 2001.

12 Lauterpacht, ibid., at 220. See, further, H. Meyrowitz, Le Principe de L’égalité des belligérants devant le droit de la Guerre (1970).

13 Cassese, Antonio, Terrorism is Also Disrupting Some Crucial Legal Categories of International Law, 12 Eur. J. Int’l L. 993, 996-97 (2001)CrossRefGoogle Scholar and Schriver, Nico J., Responding to International Terrorism: Moving the Frontiers of International Law for ‘Enduring Freedom’, XLVIII Neth. Int’l L. Rev. 271, 284-86 (2001)CrossRefGoogle Scholar.

14 29 B.F.S.P. 1137-38; 30 B.F.S.P. 195-96.

15 Gardam, Judith G., Proportionality andForce in International Law, 87 AJIL 391, 404 (1993)CrossRefGoogle Scholar.

16 Yoram Dinstein, War, Aggression and Self-Defense 208-09 (3d ed., 2001).

17 Supra note 12 (the principle of proportionality was prefaced with the remark: “even supposing the necessity of the moment authorized them to enter the territories of the United States at all...”) (emphasis supplied).

18 William Kristol, Taking the War Beyond Terrorism, Wash. Post, Jan. 31, 2002, at A25.

19 Operation Anaconda was designed to eliminate remnants of the Taliban and Al Qaeda operatives concentrated in mountains near Gardez. Spearheaded by the United States in March 2002, and supported by troops from allied countries such as France, Australia and Germany, Operation Anaconda also received assistance from 1000 Afghans loyal to the new government: Paul Reynolds: Last Stand or Long War? (March 4, 2002), available at <http://www.news.bbc.co.uk/hi/english/world/americas/newsid_1854000/1854834.stm>. Britain also provided support: T. R. Reid, Britain Set to Bulk Up Its Afghan Deployment, Wash. Post, Mar. 19, 2002, at A16.

20 Doswald-Beck, Louise, The Legal Validity of Military Intervention by Invitation of the Government, 56 British Y.B. Int’l L. 189 (1985)Google Scholar and, for more contemporary applications, G.B. Barrie, South Africa’s Forcible Intervention in Lesotho: What Does International Law Say? De Rebus 46 (1999).

21 Greenwood, Christopher, International Law and the United States Air Operation Against Libya, 89 W. Va. L. Rev. 933 (1987)Google Scholar; Kritsiotis, Dino, The Legality of the 1993 U.S. Missile Strike on Iraq and the Right of Self-Defense in International Law, 45 Int’l & Comp. L. Q. 162 (1996)CrossRefGoogle Scholar; Wedgwood, Ruth, Responding to Terrorism: The Strikes Against bin Laden, 24 Yale J. Int’l L. 559 (1999)Google Scholar.

22 See Christine Gray, International Law and the Use of Force 117 (2000).

23 Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 366 (2d ed., 2000).

24 Steiner & Alston, ibid., at 367.

25 The Declaration was issued from the Peaks of Hindu Kush, Afghanistan, on August 23, 1996, and announced:

The Muslims have realized they are the main target of the aggression of the coalition of the Jews and the Crusaders . . . The latest of these assaults is the greatest disaster since the death of the Prophet Muhamed—that is the occupation of the country of the two sacred mosques—the home ground of Islam___Our Muslim brothers throughout the world... Your brothers in the country of the two sacred places and in Palestine request your support. They are asking you to participate with them against their enemies, who are also your enemies—the Israelis and the Americans—by causing them as much harm as can be possibly achieved.

The Declaration was followed by the issuance of a fatwa by the World Islamic Front, established by bin Laden on February 22, 1998, which proclaimed:

[W]e hereby give all Muslims the following judgment: The judgment to kill and fight Americans and their allies, whether civilians or military, is an obligation for every Muslim who is able to do so in any country ... In the name of Allah, we call upon every Muslim ... to abide by Allah’s order by killing Americans and stealing their money anywhere, anytime and whenever possible. We also call upon Muslim scholars, their faithful leaders, young believers, and soldiers to launch a raid on the American soldiers of Satan and their allies of the Devil.

For reference, see Peter L. Bergen, Holy War, Inc.: Inside the Secret World of Osama Bin Laden (2001).

26 In a report of video footage, bin Laden is claimed to have said that the killing of individuals in this instance was justified because they were “not civilians”, they were working for the American system: “The Twin Towers were legitimate targets, they were supporting Us economic power. These events were great by all measurement. What was destroyed were not only the Towers, but the towers of morale in that country”. He continued: “The Towers were supposed to be filled with supporters of the economical powers of the United States who are abusing the world. Those who talk about civilians should change their stand and reconsider their position.” Furthermore, he said the hijackers of the aircraft used in the attack were “blessed by Allah to destroy America’s economic and military landmarks”: David Bamber, Daily Telegraph (London), Nov. 11, 2001, at 1.

27 Mir, Hamid, Osama Claims He Has Nukes: If Us Uses Nuclear Arms it Will Get Same Response, Daily Dawn (Karachi), Nov. 10, 2001, at 1Google Scholar. Although, after intensive investigations, it was finally concluded that Ai Qaeda lacked chemical and biological weapon capacities: Johnston, David and Risen, James, U. S. Concludes Al Qaeda Lacked a Chemical or Biological Stockpile, N.Y. Times, Mar. 20, 2002, at A14Google Scholar.

28 Shaybani’s Siyar, The Islamic Law of Nations 11 (Majid Khadduri ed., 1955).

29 Mohammed Saïd Al-Ashmaoui, L’Islamism Contre L’Islam 67-73 (1989).

30 During the course of the Iran-Iraq War of 1988, the ICRC spoke of “violations of law” which were “fundamental in character”: cited in Mohamed Bedjaoui, The Gulf War of 1980-1988 and the Islamic Conception of International law, in the Gulfwar of 1980-1988: the Iran-Iraq War in International Legal Perspective 276, at 280 (Ige F. Dekker & Harry H.G. Post eds., 1988).

31 1996 ICJ Rep. 226, at 257, para. 79.

32 Osman bin Haji Mohamed Ali and Another v. Public Prosecutor [1969] 1 A.C. 430.

33 Mohamed Ali and Another v. Public Prosecutor [1968] 3 All E.R. 488. See also Baxter, R.R., The Privy Council on the Qualification of Belligerents, 63 AJIL 290 (1969)CrossRefGoogle Scholar.

34 The original design was introduced in 1996, but changed on October 22, 1997, to include the Shahada inscription, available at <http://www.afghan-web.com/flags/flag-talib.gif>. Nevertheless, the original version remained on some military vehicles. The new version was used at border posts and during official state visits to Pakbtan, available at <http://www.forw.net/flags/af_taUb.html#1996’’www.fotw.net/flags/af_talib.html#1996>.

35 1907 Hague Convention IV Regulations Respecting the Laws and Customs of War, 100 B.F.S.P. 338 (1906-1907), Article 32. See also Morris Greenspan, the Modern Law of Land Warfare 380 (1959).