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Asymmetrical war and the notion of armed conflict – a tentative conceptualization

  • Andreas Paulus and Mindia Vashakmadze
Abstract

States across the globe are increasingly involved in violent conflicts with non-state groups both within and across borders. This new situation challenges the classic distinction in international humanitarian law between international and non-international armed conflicts. However, the changing face of warfare does not diminish the importance of IHL. The essence of this body of law – to protect civilians and persons hors de combat and to lessen unnecessary harm during armed conflict – remains the same. The applicability of IHL must therefore be determined according to objective criteria and must not be left to the discretion of the warring parties. This article seeks to conceptualize the notion of armed conflict and examines the extent to which the existing body of humanitarian law applies to the new asymmetrical conflicts. It finds that the definition given by the ICTY Appeals Chamber in its Tadić Decision on Jurisdiction, which was taken up by Article 8(2)(f) of the Rome Statute, is a useful starting point for an analysis of the ‘triggering mechanism’ of international humanitarian law in asymmetrical conflicts.

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1 Carl von Clausewitz, On War, trans. Michael Howard and Peter Paret, Princeton University Press, Princeton, 1976, p. 87; see also Hugh Smith, On Clausewitz. A Study of Military and Political Ideas, Palgrave, Basingstoke, 2004, pp. 104–10. Münkler regards the theory of war, but not the control by politics, as indicative for the future – see Herfried Münkler, Clausewitz' Theorie des Krieges, Nomos, Baden-Baden, 2003, pp. 25–6.

2 On asymmetrical conflicts see Münkler, Herfried, ‘The wars of the 21st century’, International Review of the Red Cross, No. 849 (2003), pp. 722; Pfanner, Toni, ‘Asymmetrical warfare from the perspective of humanitarian law and humanitarian action’, International Review of the Red Cross, No. 857 (2005), pp. 149–74; Robin Geiss, ‘Asymmetric conflict structures’, International Review of the Red Cross, No. 864 (2006), pp. 757–77; Kenneth Watkin, ‘21st century conflicts and international humanitarian law: status quo or change?’, in Michael N. Schmitt and Jelena Pejić (eds.), International Law and Armed Conflict: Exploring the Faultlines, Koninklijke Brill BV, Leiden, 2007, pp. 265–96; Corn, Geoffrey S., ‘Hamdan, Lebanon, and the regulation of hostilities: the need to recognize a hybrid category of armed conflict’, Vanderbilt Journal of Transnational Law, Vol. 40 (2) (2007), pp. 295355; Herfried Münkler, Der Wandel des Krieges: Von der Symmetrie zur Asymmetrie, Weilerwist, Velbrück Wissenschaft, 2006; Schmitt, Michael N., ‘21st century conflict: Can the law survive?’, Melbourne Journal of International Law, Vol. 8 (2) (2007), pp. 443–76; Schmitt, Michael N., ‘Asymmetrical warfare and international humanitarian law’, Air Force Law Review, Vol. 62 (2008), pp. 142; Knut Ipsen, ‘Humanitäres Völkerrecht und asymmetrische Konfliktparteien – ein Ausschlussbefund?’, in Andreas Fischer-Lescano et al. (eds.), Frieden in Freiheit: Festschrift für Michael Bothe zum 70. Geburtstag, Nomos, Baden-Baden, 2008, pp. 445–63.

3 Peter Kammerer, ‘The art of negotiation’, South China Morning Post, 21 April 2006, p. 15; Bronwen Maddox, ‘Ancient sage opens the way to peace of modern powers’, The Times, 20 April 2006, p. 40.

4 Sun Tzu, The Art of War, Oxford University Press, Oxford, 1971.

5 At least this is the logical consequence of the argument by Münkler, Herfried, ‘Asymmetrie und Kriegsvölkerrecht: Die Lehren des Sommerkrieges 2006’, Friedens-Warte Journal of International Peace and Organization, Vol. 81, No. 2 (2006), pp. 62–5.

6 Yotam Feldman and Uri Blau, ‘Consent and advise’, Haaretz, 29 January 2009, available at www.haaretz.com/hasen/spages/1059925.html (last visited 10 March 2009).

7 For an outline of prevailing legal opinion, see International Committee of the Red Cross (ICRC), How is the term “armed conflict” defined in international humanitarian law?;, Opinion Paper, March 2008, available at www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article–170308/$file/Opinion-paper-armed-conflict.pdf (last visited 7 May 2009). See also the International Law Association Committee on the Use of Force, ‘Initial report on the meaning of armed conflict in international law’, 2008, available at www.ila-hq.org/en/committees/index.cfm/cid/1022 (last visited 28 April 2009); O'Connell, Mary Ellen, ‘Defining armed conflict’, Journal of Conflict and Security Law, Vol. 13 (2009), pp. 393400.

8 Hilaire McCoubrey and Nigel D. White, International Law and Armed Conflict, Dartmouth Publishing Company Limited, Aldershot, 1992, p. 318: ‘[T]he “grey area” of categorization remains an issue of serious potential concern.’ For earlier assessments of the legal situation, see Schindler, Dietrich, ‘The different types of armed conflicts according to the Geneva Conventions and Protocols’, Recueil des Cours, Vol. 163 (1979), p. 119.

9 Stewart, James G., ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict’, International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 313–50; but see Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 32; Jelena Pejić, ‘Status of armed conflicts’, in Elizabeth Wilmshurst and Susan Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, p. 85.

10 See Article 1 of Convention III relative to the Opening of Hostilities (Hague Convention III), 18 October 1907.

11 Greenwood, Christopher, ‘The concept of war in modern international law’, International and Comparative Law Quarterly, Vol. 36 (1987), pp. 283306; Dieter Fleck (ed.), The Handbook of International Humanitarian Law, Oxford University Press, Oxford, 2008, para. 203; Lauterpacht, Elihu, ‘The legal irrelevance of the “state of war”’, Proceedings of the American Society of International Law, Vol. 62 (1968), p. 58.

12 See Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1952, p. 32; see also Greenwood, above note 11, p. 283.

13 International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, para. 95.

14 Pictet, above note 12, p. 32. However, there are attempts to apply the intensity criterion restrictively and not to regard small-scale military confrontations between states as a triggering event for international armed conflicts. See O'Connell, above note 7, pp. 393–400.

15 Ibid., p. 395.

16 Cf. Moir, above note 9, pp. 33–4. For an argument in favour of the application of the same rules, see Fleck, above note 11, para. 1201, p. 611 and passim.

17 ICTY, Prosecutor v. Tadić, Case No. IT-91-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber) (hereinafter Interlocutory Appeal on Jurisdiction), 2 October 1995, para. 119. See also Ratner, Steven R., ‘The schizophrenias of international criminal law’, Texas International Law Journal, Vol. 33 (1998), pp. 237, 239, 240, 249.

18 See Article 8(2)(c)–(f) on war crimes in non-international armed conflicts.

19 On the history and decline of the recognition of belligerency, see Moir, above note 9, pp. 4–21.

20 US Supreme Court, Hamdan v. Rumsfeld, 548 U.S. 557, 633, 126 S.Ct. 2749, 2797 (2006). Cf. the implicit criticism in Michael N. Schmitt, Charles H. B. Garraway and Yoram Dinstein, The Manual on the Law of Non-International Armed Conflict: With Commentary, International Institute of Humanitarian Law, San Remo, 2006, p. 2, with the approval of Fleck, above note 11, p. 607, para. 1201(3)(b); Marco Sassòli, Transnational Armed Groups and International Humanitarian Law, Harvard University Program on Humanitarian Policy and Conflict Research, Occasional Paper Series, Winter 2006, No. 6, p. 8.

21 ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, para. 70.

22 ICRC, above note 7, p. 5.

23 See Article 8(2)(f) of the Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002).

24 ICTY, Prosecutor v. Tadić, Case No. IT–94–1-T, Opinion and Judgment (Trial Chamber II), 7 May 1997, para. 562.

25 For an analysis of such asymmetrical conflicts, see Geiss, above note 2, pp. 757–77; Münkler, ‘Wars of the 21st century’, above note 2, p. 7; Pfanner, above note 2, pp. 149–174.

26 Pictet, above note 12, p. 23.

27 Nils Melzer, Targeted Killings in International Law, Oxford University Press, Oxford, 2008, p. 252.

28 O'Connell, above note 7, p. 397.

29 Stewart, above note 9; Dietrich Schindler, ‘International humanitarian law and internationalized internal armed conflicts’, International Review of the Red Cross, No. 230 (1982), p. 255; Gasser, Hans-Peter, ‘Internationalized non-international armed conflicts: case studies of Afghanistan, Kampuchea, and Lebanon’, American University Law Review, Vol. 33 (1983), p. 157; Byron, Christine, ‘Armed conflicts: international or non-international?’, Journal of Conflict and Security Law, Vol. 6, No. 1 (2001), pp. 6390.

30 Schmitt, Garraway and Dinstein, above note 20, p. 2. On the level of military support required to attribute an armed group's conduct to a state (thus internationalizing the conflict), see ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para. 115 (where the state was required to have ‘effective control’ over the group – financing, organizing, training, supplying and equipping of the group, the selection of targets and planning of its operations were insufficient to constitute this). Cf. ICTY, Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, paras. 120, 145, where it was held that the standard was ‘overall control’ by the state, which does not require the issuance of specific instructions or orders. See, however, ICJ, Application of the Genocide Convention (Bosnia-Herzegovina v. Yugoslavia), Judgment, ICJ Reports 2007, where the ICJ separated the issues of attributing internationally wrongful acts to a state and classifying a conflict. It held that for the former, the armed group must be in a relationship of ‘complete dependence’ on the state (para. 392), or else that the state must have had ‘effective control’ over the group and actually exercised this by giving instructions in respect of specific operations (para. 404). However, it held that for the separate issue of classifying a conflict, Tadić's standard of ‘overall control’ may well be appropriate (para. 404).

31 Supreme Court of Israel, Public Committee Against Torture v. Israel, Judgment, HCJ 769/02, 13 Dec. 2006, para. 21.

32 Pejić, above note 9, p. 85.

33 See Abresch, William, ‘A human rights law of internal armed conflict: The European Court of Human Rights in Chechnya’, European Journal of International Law, Vol. 16, 2005, p. 754, with further references.

34 Inter-American Commission on Human Rights, Juan Carlos Abella v. Argentina, Case 11.137, IACHR Report No. 55/97, 30 October 1997; see also Liesbeth Zegveld, ‘The Inter-American Commission on Human Rights and international humanitarian law: A comment on the Tablada case’, International Review of the Red Cross, No. 324, September 1998, pp. 505–511.

35 Cf. Tuzmukhamedov, Bakhtiyar, ‘The implementation of international humanitarian law in the Russian Federation’, International Review of the Red Cross, Vol. 85, No. 850 (2003), p. 395.

36 Protocol I, Article 1(4).

37 For details of the drafting history see Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva/The Hague, 1987, para. 4457.

38 On the US position at the time see ‘Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Noninternational Armed Conflicts’, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987), reprinted in American Journal of International Law, Vol. 81 (1987), p. 910. The Senate has since failed to act on this submission. See also Aldrich, George, ‘Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions’, American Journal of International Law, Vol. 85 (1991), p. 1; Sofaer, Abraham D., ‘The Rationale for the United States Decision’, American Journal of International Law, Vol. 82 (1988), p. 784.

39 Similarly Fleck, above note 11, p. 610, para. 1201.

40 International Criminal Court (ICC), The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Pre-Trial Chamber I), 29 January 2007, para. 233 (no connection to control of territory in Art. 8(2)(f) of the Rome Statute); ICC, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo (Pre-Trial Chamber II), 15 June 2009, para. 236; cf. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecutor's Application for a Warrant of Arrest (Pre-Trial Chamber I), 4 March 2009, para. 60 (control over territory as ‘key factor’ for ability to carry out military operations'); ICTY, Prosecutor v. Milan Milutinović, Case No. IT-05-87-T, Judgment (Trial Chamber), 26 February 2009, para. 791; ICTY, Prosecutor v. Ramush Haradinaj, Case No. IT-04-84-T, Judgment (Trial Chamber I), 3 Apr. 2008, paras. 37–60, with an extensive review of ICTY case-law, applying an intensity test regardless of territorial control; similarly, International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Trial Chamber I), 2 September 1998, paras. 619–620 (intensity and organization required). See, in particular, ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, para. 70.

41 Fleck, above note 11, p. 613, para. 1202, adding that the distinction between combatants and civilians is particularly difficult in internal conflicts; but see Article 13(3) of Protocol II (applying the same rule as Article 51, Protocol I to civilians taking part in hostilities).

42 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, ICRC/Cambridge University Press, Cambridge, 2005. The rules of Protocol I and II are listed under the headings of international and non-international conflicts, respectively, with not much difference regarding their contents. See also p. xxix for the assertion that many rules of IHL apply in both types of conflicts. For a practical example, see Supreme Court of Israel, Public Committee Against Torture v. Israel, above note 31, para. 11, applying Article 51 of Protocol I to targeted killings of alleged terrorists regardless of the classification of the conflict. See also Fleck, above note 11, p. 608, paras. 1201(3)(c), 1204 (reducing the difference between IHL of international and non-international armed conflicts to the status of the fighters).

43 Sandoz, Swinarski and Zimmermann (eds.), above note 37, para. 4461.

44 Protocol II, Article 1(1).

45 One of the current authors has concluded that this argument counsels against efforts to bring the crime of aggression under the jurisdiction of the ICC. See Paulus, Andreas L., ‘Peace through justice? The future of the crime of aggression in a time of crisis’, Wayne Law Review, Vol. 50, No. 1 (2004), p. 1.

46 Letter of 21 June 1989 from the Permanent Observer of Palestine to the United Nations Office at Geneva, stating that ‘the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto’, available at www.icrc.org/ihl.nsf/Pays?ReadForm&c=PS (last visited 10 March 2009). This declaration was, however, probably an attempt at an ordinary ratification rather than a declaration under Article 96(3).

47 Similarly, Christopher Greenwood, ‘Customary law status of the 1977 Geneva Protocols’, in Astrid J. M. Delissen and Gerard J. Tanja (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of Frits Kalshoven, Martinus Nijhoff, Dordrecht, 1991, p. 112; Christopher Greenwood, ‘Scope of Application of Humanitarian Law’, in Fleck (ed.), above note 11, para. 202, n. 4; but see Georges Abi-Saab, ‘The 1977 Additional Protocols and general international law: some preliminary reflections’, ibid., p.120; Abi-Saab, Georges, ‘Wars of national liberation in the Geneva Conventions and Protocols’, Recueil des Cours, Vol. 165 (IV) (1979), pp. 371–2, referring to the principle of self-determination. For an example of an attempt to invoke Article 96(3), see National Democratic Front of the Philippines, Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977, available at www.hartford-hwp.com/archives/54a/036.html (last visited 10 March 2009).

48 See Protocol II, Article 1(1), and Sandoz, Swinarski and Zimmermann, above note 37, para. 4359, 4453 and passim.

49 In Article 8(2)(d), the inclusion of an ‘or’ instead of an ‘and’ seems to have been inadvertent; see Andreas Zimmermann ‘Article 8: War Crimes’ in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Beck, Munich, 2008, para. 299.

50 In line with Fleck, above note 11, p. 616, para. 1205.

51 Zimmermann, above note 49, para. 300. See also Fleck, above note 11, p. 610, para. 1201.

52 Cf. ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, para. 70.

53 See in particular Fleck, above note 11, p. 611, para. 1201 (5)(c); see also Kress, Claus, ‘War crimes committed in non-international armed conflict and the emerging system of international criminal justice’, Israel Yearbook on Human Rights, Vol. 30 (2000), pp. 117–20.

54 Quéguiner, Jean-François, ‘Dix ans après la création du Tribunal pénal international pour l'ex-Yougoslavie: évaluation de l'apport de sa jurisprudence au droit international humanitaire’, International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 278–81; Sassòli, above note 20, pp. 6–7.

55 Catherine Soanes and Angus Stevenson (eds.), Oxford Dictionary of English, Oxford University Press, Oxford, 2005, p. 1416, according to whom ‘protracted’ means ‘lasting for a long time or longer than expected or usual’.

56 ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, para. 70.

57 ICTY, Prosecutor v. Ramush Haradinaj, above note 40, para. 49.

58 ICTR, Prosecutor v. Akayesu, above note 40, para. 603: ‘It should be stressed that the ascertainment of the intensity of a non-international conflict does not depend on the subjective judgment of the parties to the conflict. It should be recalled that the four Geneva Conventions, as well as the two Protocols, were adopted primarily to protect the victims, as well as potential victims, of armed conflicts. If the application of international humanitarian law depended solely on the discretionary judgment of the parties to the conflict, in most cases there would be a tendency for the conflict to be minimized by the parties thereto. Thus, on the basis of objective criteria, both Common Article 3 and Additional Protocol II will apply once it has been established there exists an internal armed conflict which fulfils their respective pre-determined criteria’.

59 Cf. Zimmermann, above note 49, paras. 347–348.

60 As in the ICTY precedents; see Kress, above note 53, p. 118. However, we do not agree that this definition should be read into Article 8(2)(c) as well. Arguments from the drafting history appear unconvincing, owing to the different wording; see Article 32 entitled ‘Supplementary means of interpretation’ of the Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980).

61 Similarly, Kress, above note 53, p. 121.

62 Zimmermann, above note 49, para. 348.

63 See in particular Henckaerts and Doswald-Beck, above note 42. See also René Kosirnik, ‘The 1977 Protocols: A landmark in the development of international humanitarian law’, International Review of the Red Cross, No. 320 (1997), pp. 483–505; Greenwood, above note 47, pp. 93–144.

64 Henckaerts and Doswald-Beck, above note 42.

65 US Supreme Court, Hamdan v. Rumsfeld, 548 U.S. 557, 633, 126 S.Ct. 2749, 2797 (2006) (Stevens, J., plurality opinion); ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Separate Opinion of Judge Simma, ICJ Reports 2005, paras. 26–28; Council of Europe, Venice Commission of the European Commission for Democracy through Law, Opinion No. 245/2003, at its 57th Plenary Session, Venice, 12–13 December 2003, Doc. No. CDL-AD (2003) 18, para. 38; UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, para. 9.2 with further references; but see also the scepticism regarding Article 75 of Protocol I in US Supreme Court, Hamdan v. Rumsfeld, above note 20, p. 2809 (Kennedy, J. concurring; arguing that this was for the executive branch to decide). See also the 1990 Turku Declaration of Minimum Humanitarian Standards, in ‘Report of the Secretary-General prepared pursuant to Commission resolution 1995/29’, E/CN.4/1996/80 of 28 November 1995, Annex, to which only Mexico objected (p. 3); cf. Asbjørn Eide, Allan Rosas and Theodor Meron, ‘Combating lawlessness in gray zone conflicts through minimum humanitarian standards’, American Journal of International Law, Vol. 89 (1995), pp. 215–18.

66 See Fleck, above note 11, para. 1204, presenting the conclusion as a ‘trend’.

67 Meron, Theodor, ‘The humanization of humanitarian law’, American Journal of International Law, Vol. 94 (2000), p. 261.

68 See Fleck, above note 11, at 611, para. 1201, n. 6.

69 ‘Global war on terror’ is the label attached by the Bush administration to the struggle against al Qaeda and other terrorist groups. See John B. Bellinger, ‘Prisoners in war: contemporary challenges to the Geneva Conventions’, lecture at the University of Oxford, 10 December 2007, available at www.state.gov/s/l/rls/96687.htm (last visited 10 March 2009). Recently the British Foreign Secretary distanced himself from the term – see David Miliband, ‘“War on terror” was wrong’, Guardian, 15 January 2009, available at www.guardian.co.uk/commentisfree/2009/jan/15/david-miliband-war-terror (last visited 25 May 2009). The Obama administration appears to use the term only sparingly, if at all – see Howard LaFranchi and Gordon Lubold, ‘Obama redefines war on terror’, Christian Science Monitor, 29 January 2009, available at features.csmonitor.com/politics/2009/01/29/obama-redefines-war-on-terror/ (last visited 25 May 2009).

70 See Pfanner, above note 2, pp. 149–74.

71 See the description in Münkler, ‘The wars of the 21st century’, above note 2, p. 7; Schmitt, above note 2.

72 For the importance of such expectations of reciprocity in international law, see Fleck, above note 11, p. 607, para. 1201(3)(b); Bruno Simma, ‘Reciprocity’, in Rüdiger Wolfrum (ed.) Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, 2008, para. 8.

73 Jean de Preux, ‘The Geneva Conventions and reciprocity’, International Review of the Red Cross, No. 244 (1985), pp. 25–29.

74 Third Geneva Convention, Article 4(A)(2).

75 A clause requiring reciprocity was explicitly dropped in the course of the negotiations – see Pictet, above note 12, p. 37.

76 Ibid., p. 36.

77 See Michael A. Fletcher, ‘Bush defends CIA's clandestine prisons’, Washington Post, 8 November 2005, p. A15, a statement that has recently been contradicted by Susan Crawford, the head of the military tribunals at Guantánamo Bay – see Bob Woodward, ‘Detainee tortured, says US official’, Washington Post, 14 January 2009, p. A1. On the infamous ‘Torture memos’ justifying the use of ‘coercive methods’ on alleged terrorists, see Karen J. Greenberg and Joshua L. Dratel (eds.), The Torture Papers: The Road to Abu Ghraib, Cambridge University Press, Cambridge, 2005. For a collection of some unpublished memos, see Office of Legal Counsel Memoranda at www.usdoj.gov/opa/documents/olc-memos.htm (last visited 10 March 2009). For the repudiation of these and other memos in the late days of the Bush administration, see Office of Legal Counsel, ‘Memorandum for the Files’, 15 January 2009, p. 3, available at www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf (last visited 10 March 2009). For the Executive Order by President Barack Obama prohibiting the use of torture generally, see Executive Order No. 13491 – Ensuring Lawful Interrogations, 22 January 2009, 74 FR 4893. For an overview of the ICRC report on the treatment of fourteen ‘high value detainees’ in CIA custody, which certainly fits the designation of ‘torture’ under any terminology, see Danner, Mark, ‘US torture: voices from the black site’, New York Review of Books, Vol. 56 (6) (2009), available at www.nybooks.com/articles/22530 (last visited 11 May 2009).

78 George W. Bush, ‘Humane treatment of Taliban and al Qaeda detainees’, 7 February 2002, available at www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (last visited 10 March 2009).

79 Executive Order 13492 (2009) – Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities, 74 FR 4897; see also Executive Order No. 13491 – Ensuring Lawful Interrogations, above note 77.

80 See In re: Guantánamo Detainee Litigation, Respondent's Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantánamo Bay, Misc. No. 08–442 (TFH), 13 March 2009, available at www.usdoj.gov/opa/documents/memo-re-det-auth.pdf (last visited 16 March 2009), pp. 1, 3, 6. See also D.C. District Court, Gherebi v. Obama, Civil Action No. 04–1164, 2009 WL 1068955, 22 April 2009, p. 21, available at www.unhcr.org/refworld/docid/4a0bcd162.html (last visited 25 May 2009), endorsing the administration's position, but correctly basing the authority for detention on domestic law rather than IHL – ‘The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it’ (p. 38).

81 Bush, above note 78.

82 For an example of how international human rights law applies, see European Court of Human Rights (ECHR), McCann and Others v. United Kingdom, Judgment, 27 September 1995, Series A, No. 324, para. 148.

83 Kirchner even argues that Hezbollah's attacks against Israel are attributable not only to Lebanon but also to Iran and Syria – see Kirchner, Stefan, ‘Third-party liability for Hezbollah attacks against Israel’, German Law Journal, Vol. 7 (9) (2006), pp. 777–84. However, Kirchner seems to have confused attribution and complicity. On the conditions of attribution, see ICJ, Application of the Genocide Convention (Bosnia-Herzegovina v. Yugoslavia), above note 30, paras. 396–412. For the application of these criteria to the Lebanon conflict with the (in our view correct) conclusion that attribution fails, see Zimmermann, Andreas, ‘The second Lebanon war: jus ad bellum, jus in bello and the issue of proportionality’, Max Planck Yearbook of United Nations Law, Vol. 11 (2007), pp. 112–15.

84 Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, p. 136.

85 See, to the same effect, United States Supreme Court, Hamdan v. Rumsfeld, above note 20.

86 Cf. ICTY, Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, paras. 84, 86ff. (separate analysis of different parts of the conflict).

87 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, above note 13, paras. 90–101.

88 Treaty of Peace between the Arab Republic of Egypt and the Government of the State of Israel, 26 March 1979, entry into force 25 April 1979, 1136 UNTS 115; Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, 2042 UNTS 351, entry into force 10 Nov. 1994.

89 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, above note 13, para. 90, 93, 101.

90 Supreme Court of Israel, Mara'abe v. Prime Minister, HCJ 7957/04, Judgment, 15 September. 2005, para. 14 (leaving open the question of de jure or de facto applicability of Fourth Geneva Convention).

91 Supreme Court of Israel, Jaber Al-Bassiouni v. Prime Minister, HCJ 9132/07, Judgment, 30 January 2008, para. 12; Yuval Shany, The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. Prime Minister of Israel, Hebrew University International Law Research Paper, No. 13–09, 2009, pp. 6–8, available at http://ssrn.com/abstract=1350307 (last visited 25 May 2009).

92 Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 276–79, paras. 664–670.

93 For details of the drafting history, see Pictet, above note 12, p. 54.

94 Ibid., p. 55.

95 For a detailed analysis, see in particular Cassese, Antonio, ‘On some merits of the Israeli judgment on targeted killings’, Journal of International Criminal Justice, Vol. 5, No. 2 (2007), p. 339; Antonio Cassese, International Law, Oxford University Press, Oxford, 2005, pp. 420–3; David Kretzmer, ‘Targeted killing of suspected terrorists: extra-judicial executions or legitimate means of defence?’ European Journal of International Law, Vol. 16 (2000), p. 171; Melzer, above note 28.

96 Supreme Court of Israel, Public Committee Against Torture v. Israel, above note 31, para. 16, with further references to previous case law of the Supreme Court.

97 ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, para. 127 (development of customary rules for internal conflict).

98 US Supreme Court, Hamdan v. Rumsfeld, above note 20, para. 2795 (minimum rules contained in Common Article 3 for international and non-international conflicts, including transnational armed conflicts).

99 Cassese, International Law, above note 95, p. 420: ‘An armed conflict which takes place between an Occupying Power and rebel or insurgent groups … in occupied territory, amounts to an international armed conflict.’

100 For the most comprehensive recent attempt, see the Draft Comprehensive Convention on International Terrorism, UN Doc. A/59/894, 12 August 2005, Appendix I. The most problematic issue to be resolved is the applicability of the Convention. See also Mahmoud Hmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism’, Journal of International Criminal Justice, Vol. 4, No. 5 (2006), p. 1031; P. Klein, ‘Le droit international à l’épreuve du terrorisme', Recueil des Cours 321 (2006), pp. 203, at pp. 231 ff. and pp. 305 ff.; Guillaume, Gilbert, ‘Terrorism and international law’, International & Comparative Law Quarterly, Vol. 53 (2004), pp. 537, 541.

101 Geiss, above note 2, pp. 757–77.

102 See, however, Schmitt, above note 2, pp. 1–42.

103 The temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities: in international armed conflict to the whole territory of the state in question, in non-international armed conflict at least to the area in which the conflict takes place – see ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, paras. 67 and 70; see also ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Separate Opinion of Judge Simma, above note 65, para. 23.

104 ICTY, Prosecutor v. Ljube Boškoski and Johan Tarculovski, Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, para. 197.

105 To assess the intensity of a conflict, the following factors have been taken into consideration: ‘the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilization and distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and, whether any resolutions on the matter have been passed’. See ICTY, Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005, para. 90.

106 See ICTY, Prosecutor v. Ljube Boškoski, Johan Tarculovski, above note 104, para. 197.

107 ICTY, Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, above note 105, para. 90.

108 ICTY, Prosecutor v. Ramush Haradinaj, above note 40, paras. 63–88.

109 Section 5(c) of Military Commission Instruction No. 2, Crimes and Elements for Trials by Military Commission, April 30, 2003, available at www.defenselink.mil/news/May2003/d20030430milcominstno2.pdf (last visited 10 March 2009), approvingly cited by Sassòli, above note 20, p. 8. Cf. preambles to Security Council Resolutions 1368 and 1373 (2001), justifying self-defence against the perpetrators regardless of their origin. For the same confusion of jus ad bellum and jus in bello, see the Memorandum by the Obama administration regarding detention authority, above note 79, pp. 4–5.

110 Cf. Definition of Aggression, Res. 3314 (XXIX), 14 Dec. 1974, UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974), Annex, Art. 3; Albrecht Randelzhofer, ‘Article 51’, in Bruno Simma (ed.), The Charter of the United Nations: A Commentary, Oxford University Press, Oxford/New York, 2002, Art. 51 MN 17–20. For the second Lebanon war, see Zimmermann, above note 83, pp. 107–9; for the mining of a naval vessel, see Oil Platforms (Iran v. United States of America), Judgement, ICJ Reports 2003, p.161, para. 72 (one attack may be sufficient to constitute an armed attack triggering the right of self-defence, but not in the absence of the requisite evidence).

111 Sassòli, above note 20, p. 8.

112 Common Article 3; Protocol I, Article 75; and customary law – see Henckaerts and Doswald-Beck, above note 42, as well as the Turku Declaration, above note 65.

113 Similarly, Noëlle Quénivet, ‘The applicability of international humanitarian law to situations of a (counter-)terrorist nature’, in Roberta Arnold and Pierre-Antoine Hildbrand (eds.), International Humanitarian Law and the 21st Century's Conflicts: Changes and Challenges, Edis, Lausanne/Berne/Lugano, 2005, p. 27: ‘As international humanitarian law does not know of the legal category “terrorism”, one needs to assess, on a case-by-case basis, whether such situations of a terrorist nature can be considered as an armed conflict’; Roberta Arnold, ‘Terrorism and IHL: A common denominator?’, ibid., p. 22.

114 ICTY, Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (Trial Chamber), 25 June 1999, para. 49.

115 ECHR, McCann v. United Kingdom, above note 82.

116 See Martin, Francisco Forrest, ‘Using international human rights law for establishing a unified use of force rule in the law of armed conflict’, Saskatchewan Law Review, 2001, Vol. 64, No. 2, p. 347; Roberta Arnold and Noëlle Quénivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law, Martinus Nijhoff, Leiden/Boston, 2008.

117 See ECHR, Isayeva v. Russia, Application No. 57950/00, Judgment (Chamber), 24 February 2005 (final 6 July 2005); ECHR, Isayeva, Yusupova and Bazayeva v. Russia, Applications Nos. 57947/00, 57948/00, 57949/00, Judgment (Chamber), 24 Feb. 2005 (final 6 July 2005). For criticism see Andreas Paulus, ‘The protection of human rights in internal armed conflict in Europe: Remarks on the Isayeva decisions of the European Court of Human Rights’, Uppsala Yearbook of East European Law, 2006, p. 61; Abresch, William, ‘A human rights law of internal armed conflict: The European Court of Human Rights in Chechnya’, European Journal of International Law, Vol. 16 (2005), p. 741.

118 Human Rights Committee, Guerrero v. Colombia, Communication No. R.11/45, 31 March 1982, paras. 13.2–13.3.

119 According to the Principle 9 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, force can only be used ‘in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.’ Adopted by the UN General Assembly in Resolution 45/166, 18 December 1999.

120 See Doswald-Beck, Louise, ‘The right to life in armed conflict: does international humanitarian law provide all the answers?’, International Review of the Red Cross, Vol. 88, No. 864 (2006), pp. 881904.

121 For one of the most egregious examples see Alberto Gonzales (White House Legal Counsel and later US Attorney-General), Memorandum for the President, Draft, 25 Jan. 2002, in Karen J. Greenberg and Joshua L. Dratel (eds.), The Torture Papers: The Road to Abu Ghraib, Cambridge University Press, Cambridge, 2005, pp. 118–19: ‘[T]his new paradigm [the war against terrorism] renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.’

122 See in particular the claim by the Bush administration that the ‘war on terror’ was a transnational armed conflict to which the laws of war applied, in the sense that ordinary law was suspended, but did not protect ‘illegal enemy combatants’, aka terrorists, from any abuse such as waterboarding – see in particular Bellinger, above note 69. For a general analysis of asymmetry in modern armed conflict, see Schmitt, above note 2, pp. 13–15, 41–2.

123 See in particular Sandoz, Swinarski and Zimmermann, above note 37, paras. 49–51, who even speak of an ‘absolute’ ‘prohibition against invoking reciprocity in order to shirk the obligations of humanitarian law’. See also Article 60(5) of the Vienna Convention on the Law of Treaties, excluding treaties of a humanitarian character from the application of reciprocity in the event of a breach of those treaties.

124 For details, see Pictet, above note 12, Vol. 1, pp. 34–7, and Vol. 4, pp. 22–5.

125 Sylvie Junod, ‘Scope of this protocol’, in Sandoz, Swinarski and Zimmermann, above note 37, para. 4442–4444.

126 On their customary nature see note 65 above.

127 ICJ, Military and Paramilitary Activities in and against Nicaragua, above note 30, para. 218, For the ‘elementary considerations of humanity’ as a source of international law, see ICJ, Corfu Channel Case (United Kingdom v. Albania), Judgment (Merits), ICJ Reports 1949, p. 22.

128 On the attempt to create such a zone at Guantánamo Bay, see, famously, Steyn, Johan, ‘Guantánamo Bay: the legal black hole’, International & Comparative Law Quarterly, Vol. 53 (2004), p. 1. The recent judgment of the US Supreme Court in Boumediene has apparently definitively laid this attempt to rest – see Boumediene v. Bush, 128 SCt 2229 (2008), reprinted in 47 ILM 650 (2008). On his second day in office, President Obama vowed to close Guantánamo – see LaFranchi and Lubold, above note 69.

129 See Lindsay Moir, ‘Towards the unification of international humanitarian law’, in Richard Burchill, Nigel D. White and Justin Morris (eds.), International Conflict and Security Law: Essays in Memory of Hilaire McCoubery, Cambridge University Press, Cambridge, 2005, pp. 108, 126; Pejić, above note 9.

130 See in particular ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, paras. 96, 97, 119; on the details see Henckaerts and Doswald-Beck, above note 42.

131 US Supreme Court, Hamdan v. Rumsfeld, above note 20, paras. 2795 (majority opinion) and 2797 (Justice Stevens, plurality opinion).

132 ICJ, Armed Activities on the Territory of the Congo, Separate Opinion of Judge Simma, above note 65, paras. 26–28; Opinion of the European Commission for Democracy through Law (Venice Commission), adopted at its 57th Plenary Session, Venice, 12–13 December 2003, Opinion No. 245/2003, Council of Europe Doc. No. CDL-AD (2003) 18, para. 38.

133 Turku Declaration, above note 65.

134 Pictet, above note 12, pp. 20–1. See also Quéguiner, above note 54, p. 275: ‘[L]es critères de durée ou d'intensité des combats sont indifférents à la qualification d'un conflit armé international.’

135 Mohammad-Mahmoud Ould Mohamedou, Non-linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States, Harvard University Program on Humanitarian Policy and Conflict Research, July 2005, available at www.hpcr.org/pdfs/Non-Linearity_of_Engagement.pdf (last visited 8 March 2009).

136 See Mary Ellen O'Connell, ‘Ad hoc war’, in Horst Fischer, Ulrike Froissart and Wolff Heintschel von Heinegg (eds.), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck, BWV, Berlin, 2004, pp. 415–16; Quénivet, above note 112, p. 49.

137 Gasser, Hans-Peter, ‘Acts of terror, “terrorism” and international humanitarian law’, International Review of the Red Cross, Vol. 84, No. 847 (2002), p. 556; Pejić, Jelena, ‘Terrorist acts and groups: a role for international law?’, British Yearbook of International Law, Vol. 75 (2004), pp. 85–8, argues that beyond the case of the 2001–2 conflict in Afghanistan, the contemporary ‘war on terror’ is no armed conflict at all.

138 Gasser, above note 137, pp. 547–70.

139 Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, E/CN.4/2005/103, para. 18.

140 International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, International Commission of Jurists, Geneva, 2009, p. 65.

141 Moir, above note 129, pp. 108–28.

142 On the ‘fragmentation’ of international law see Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, 2006 (with an extensive bibliography).

143 See ICTY, Prosecutor v. Tadić, Interlocutory Appeal on Jurisdiction, above note 17, para. 119.

144 Sun Tzu, above note 4, p. 88, para. 15. The comment by Tu Mu explains: ‘The Tao is the way of humanity and justice; “laws” are regulations and institutions.’

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International Review of the Red Cross
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