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The Military Response to Criminal Violent Extremist Groups: Aligning Use of Force Presumptions with Threat Reality

  • Geoffrey S Corn (a1) and Tanweer Kaleemullah (a1)

Abstract

In 1949, the inclusion of Common Article 3 to the four Geneva Conventions represented a significant advance in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of Common Article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation – and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered – are applicable when a state confronts organised criminal gangs who possess a capability to engage in violence and wreak havoc that rivals, if not exceeds, that of traditional insurgent threats.

Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering Common Article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the Conventions at that time anticipated the nature of organised criminal gangs and the destabilising effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilisation of regular military forces to restore government control in areas in which they operate. This results in the use of force and the exercise of incapacitation powers that far exceed normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However, it is also the view of the authors that the risk of excess of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in the unjustified deprivation of life, liberty and property.

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1 Raymond T Odierno, William H McRaven and James F Amos, ‘Strategic Landpower: Winning the Clash of Wills’, Strategic Landpower Task Force (White Paper), 2013.

2 For example, it is estimated that more than 60,000 people have died in drug-related violence in Mexico in the last decade: ‘Q&A: Mexico's Drug-related Violence’, BBC News, last updated 25 November 2013, http://www.bbc.co.uk/news/world-latin-america-10681249; Honduras is confronting drug-related violence that has resulted in the highest per capita murder rate in the world, and has deployed military forces to gain control of the most violent neighbourhoods: ‘Inside the World's Deadliest Country’, CBS News, 31 December 2013, http://www.cbsnews.com/news/inside-the-worlds-deadliest-country-honduras/; El Salvador recently deployed more than 4,000 army personnel in response to criminal gang violence: ‘El Salvador's Open Wound’, Al Jazeera, 17 January 2012, http://www.aljazeera.com/programmes/insidestoryamericas/2012/01/201211782215341419.html; Brazil utilises an elite military police and other military units to reclaim control over the notoriously violent favelas of Rio: Fabiana Frayssinet, ‘Brazil: “Pacification” of Favelas Not Just a Media Circus’, Inter Press Service News Agency, 4 July 2013, http://www.ipsnews.net/2011/11/brazil-pacification-of-favelas-not-just-a-media-circus/.

3 Frayssinet, ibid.

4 Attorney General for Northern Ireland's Reference (No 1 of 1975) [1975] AC 105,136, Lord Diplock and others (Attorney General's Reference).

5 Jerome P Bjelopera and Kristin M Finklea, ‘Organized Crime: An Evolving Challenge for U.S. Law Enforcement’, Congressional Research Service, 6 January 2012, RL 41547.

6 Mario Puzo, The Godfather, 1969 (film).

7 John Rollins and Liana Sun Wyler, ‘Terrorism and Transnational Crime: Foreign Policy Issues for Congress’, Congressional Research Service, 11 June 2013, RL 41004.

8 Ritch, Joseph E, ‘They'll Make You an Offer You Can't Refuse: A Comparative Analysis of International Organized Crime’ (2002) 9 Tulsa Journal of Comparative and International Law 569, 572.

9 ibid 578–92; see also Rotman, Edgardo, ‘The Globalization of Criminal Violence’ (2000) 10 Cornell Journal of Law and Public Policy 1, 10.

10 Rotman, ibid 10.

11 Ritch (n 8).

12 Williams, Phil, ‘Problems and Dangers Posed by Organized Transnational Crime in the Various Regions of the World’ in Williams, Phil and Savona, Ernesto U (eds), The United Nations and Transnational Organized Crime (Routledge 1996) 1, 31.

13 Rotman (n 9) 4 (‘The transnational expansion of criminal organizations has increased the level of violence through turf wars, reprisals, and attacks on state enforcement agencies and political officials. Organized crime has created a market in violence, subcontracted to and perpetrated by local criminals’); 10 (‘Violation of democratic human rights is part of the picture of violence and intimidation. Webster and others have underscored contract killing as one of the most pernicious problems for Russian law enforcement. This is reflected in a 1996 Russian Ministry of the Interior annual report, which mentions that of 562 contract murders in Russia in 1994, only 132 were solved’).

14 Paulose, Regina Menachery, ‘Beyond the Core: Incorporating Transnational Crime into the Rome Statute’ (2012) 21 Cardozo Journal of International and Comparative Law 77, 87; see also Rotman (n 9) 4.

15 Nagle, Luz E, ‘Global Terrorism in Our Own Backyard: Colombia's Legal War against Illegal Armed Groups’ (2005) 15 Transnational Law and Contemporary Problems 5, 1314; Chelluri, Nagesh, ‘A New War on America's Old Frontier: Mexico's Drug Cartel Insurgency’ (2011) 210 Military Law Review 51, 54 (‘From the beginning of the conflict, the Mexican government has been treating the war as a police action with the aim of prosecuting the leadership of the cartels. However with its police forces unable to cope with the cartels' corrupting influence and military power, the Mexican government deployed its army. The Mexican government has yet to admit the cartels pose a direct threat to the Mexican state’).

16 Fixkendra, William A and others, ‘Offense, Defense, or Just a Big Fence? Why Border Security is a Valid National Security Issue’ (2012) 14 Scholar 741, 752–53.

17 ibid.

18 Bergal, Carina, ‘The Mexican Drug War: The Case for Non-International Armed Conflict Classification’ (2011) 34 Fordham International Law Journal 1042; see also Jensen, Eric Talbot, ‘Applying a Sovereign Agency Theory of the Law of Armed Conflict’ (2012) 12 Chicago Journal of International Law 685, 713.

19 ‘UNODC Homicide Statistics’, UNODC, http://www.unodc.org/unodc/en/data-andanalysis/homicide.html.

20 Siskind, Melissa, ‘Guilt by Association: Transnational Gangs and the Merits of a New Mano Dura’ (2008) 40 George Washington International Law Review 289, 293.

21 Rotman (n 9) 4, 7.

22 Buckley, Orla Marie, ‘Unregulated Armed Conflict: Non-State Armed Groups, International Humanitarian Law, and Violence in Western Sahara’ (2012) 37 North Carolina Journal of International Law and Commercial Regulation 793, 794, 806.

23 Brooks, Rosa E, ‘War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror’ (2004) 153 University of Pennsylvania Law Review 675.

24 Chelluri (n 15) 56–57; see also Jensen (n 18) 712–13.

25 Bergal (n 18); see also Chelluri (n 15); Jensen (n 18) 712–13.

26 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I), art 3; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II), art 3; Geneva Convention (III) Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), art 3; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), art 3.

27 ICTY, Prosecutor v Tadić, Appeal on Jurisdiction, IT-94-1-AR72, Appeals Chamber, 2 October 1995.

28 Hamdan v Rumsfeld 548 US 557 (2006).

29 Vité, Sylvain, ‘Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations’ (2009) 91 International Review of the Red Cross 1, 7578; see also Bergal (n 18) 1056–57.

30 ibid 71–72, 76.

31 Tadić (n 27).

32 Chelluri (n 15) 91.

33 Bergal (n 18) 1060; see also Tadić (n 27) para 70.

34 Control of territory by the non-state belligerent group is an explicit requirement to trigger the applicability of the 1977 Additional Protocol II to the Geneva Conventions (developed to supplement the minimal treaty regulation of non-international armed conflicts provided by Common Article 3 to the four Geneva Conventions): Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (AP II). Art 13 of AP II imposes a targeting discrimination obligation on parties to such conflicts, thereby acknowledging that parties are permitted to use combat power according to traditional conduct of hostilities rules in such conflicts. At least one scholar has posited that this indicates that the conduct of hostilities rules are inapplicable to NIACs that fall within the scope of CA3 but have yet to trigger AP II because of the lack of territorial control by the non-state party: Françoise Hampson, ‘Between Scylla and Charybdis: The Interplay of Conduct of Hostilities and Law Enforcement from a Policing Perspective’, 7th Annual Minerva/ICRC International Conference on International Humanitarian Law ‘Conduct of Hostilities and Law Enforcement: A Contradiction in Terms?’, 3–4 December 2012 (notes on file with the authors).

This NIAC without conduct of hostilities concept seems to be inconsistent with both the historical nature of NIACs and the general interpretation of conflict classification. For example, although not a party to AP II, the United States has always indicated that it considers the rules of AP II to be applicable to any NIAC that falls within the scope of CA3. Indeed, the only aspect of AP II criticised by President Reagan when he transmitted the treaty to the US Senate for advice and consent was the more demanding triggering requirements of the Protocol: Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-international Armed Conflicts, S. Treaty Doc No 2, 100th Cong, 1st Sess, IV (1987), reprinted in (1987) 81 American Journal of International Law 910, 911.

A further example is provided by Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 43–45. That study acknowledges that armed conflict includes situations of hostilities between organised armed groups, or ‘parties’, and in no way qualifies the assessment of applying conduct of hostilities rules only to those situations that trigger AP II.

35 Tadić (n 27) para 562.

36 Corn, Geoffrey S and Blank, Laurie R, ‘Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition’ (2013) 46 Vanderbilt Journal of Transnational Law 693.

37 Jean S Pictet (ed), Commentary on the Geneva Convention III Relative to the Treatment of Prisoners of War (ICRC 1960) Common Article 3 (Note: Article 3 is common to all four of the Geneva Conventions of 1949):

[M]any of the delegations feared that it might be taken to cover any act committed by force of arms – any form of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to rise in rebellion against the State and attack a police station, would that suffice to bring into being an armed conflict within the meaning of the Article? ... these different conditions, although in no way obligatory, constitute convenient criteria …:

  1. (1)

    (1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

  2. (2)

    (2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

  3. (3)

    (3)

    1. (a)

      (a) That the de jure Government has recognized the insurgents as belligerents; or

    2. (b)

      (b) that it has claimed for itself the rights of a belligerent; or

    3. (c)

      (c) that it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or

    4. (d)

      (d) that the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.

  4. (4)

    (4)

    1. (a)

      (a) That the insurgents have an organization purporting to have the characteristics of a State.

    2. (b)

      (b) That the insurgent civil authority exercises de facto authority over persons within a determinate territory.

    3. (c)

      (c) That the armed forces act under the direction of the organized civil authority and are prepared to observe the ordinary laws of war.

    4. (d)

      (d) That the insurgent civil authority agrees to be bound by the provisions of the Convention.

The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection … the Article should be applied as widely as possible.

38 Bergal (n 18) 1076–77.

39 Corn and Blank (n 36).

40 ICTY, Prosecutor v Limaj, Judgment, IT-03-66-T, Trial Chamber II, 30 November 2005 [170] (‘most importantly in the Chamber's view, the determination of the existence of an armed conflict is based solely on two criteria: the intensity of the conflict and organisation of the parties; the purpose of the armed forces to engage in acts of violence or also achieve some further objective is, therefore, irrelevant).

41 Buckley (n 22) 799–800.

42 Chelluri (n 15) 54, 79–80; see also Bergal (n 18) 1086.

43 Nagle, Luz Estella, ‘Latin America: Views on Contemporary Issues in the Region – The Challenges of Fighting Global Organized Crime in Latin America’ (2002) 26 Fordham International Law Journal 1649, 1652 (discussing the alliance of South American and Middle Eastern organisations); see also Solomonov, Eugene, ‘US–Russian Mutual Legal Assistance Treaty: Is There a Way to Control Russian Organized Crime’? (1999) 23 Fordham International Law Journal 165, 185–86. (‘There are also possibilities that authoritarian states, such as Iran, Libya, and North Korea may try to acquire nuclear weapons or material from organized criminal groups in order to enhance their weapons development programs’).

44 John Rollins and Liana Sun Wyler, ‘Terrorism and Transnational Crime: Foreign Policy Issues for Congress’, Congressional Research Service, 19 October 2012, RL 41004.

45 Chelluri (n 15) 54 (‘At this stage of the conflict, Mexico may be moving from “Colombianization” to “Afghanistanization”. The issue is viewed seriously by the US Joint Forces Command, which reported in a 2008 study that “two large and important states bear consideration for a rapid and sudden collapse: Pakistan and Mexico”’).

46 Nagle (n 43) 1651–52.

47 Bergal (n 18) 1046.

48 Chelluri (n 15) 99.

49 Pictet (n 37) (discussing and listing the criteria for a NIAC).

50 Schoettler, James A Jr, ‘Detention of Combatants and the Global War on Terror’ in The War on Terror and the Laws of War: A Military Perspective (Oxford University Press 2009) 67; see also Corn, Geoffrey S and others, ‘Detention’ in Been, Vicki and others (eds), The Law of Armed Conflict: An Operational Approach (Aspen 2012) 309, 310–28.

51 Gurule, Jimmy and Corn, Geoffrey S, ‘Trial by Military Tribunal’ in The Principles of Counter-Terrorism Law (West Group 2011) 151.

52 Hamdan v Rumsfeld 548 US 557 (2006); Hamdan v US 696 F.3d 1238 (2012).

53 Department of the Army, Law of War Handbook (International and Operational Law Department, US Army Judge Advocate General's Legal Center and School 2004) 84.

54 Corn, Geoffrey S, ‘Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict’ (2010) 1 Journal of International Humanitarian Legal Studies 52, 74, 7677; Watkin, Kenneth, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98 American Journal of International Law 1, 16; also Watkin, Kenneth, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42 New York University Journal of International Law and Policy 641.

55 Boothby, William, ‘And For Such Time As: The Time Dimension to Direct Participation in Hostilities’ (2010) 42 New York University Journal of International Law and Policy 741; Corn, Geoffrey S and Jenks, Chris, ‘Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflicts’ (2011) 33 University of Pennsylvania Journal of International Law 313, 359; Christensen, Eric, ‘The Dilemma of Direct Participation in Hostilities’ (2010) 19 Journal of Transnational Law and Policy 281; Keck, Trevor, ‘Not All Civilians Are Created Equal: The Principle of Distinction, The Question of Direct Participation in Hostilities and Evolving Restraints on the Use of Force in Warfare’ (2012) 211 Military Law Review 115.

56 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross and Martinus Nijhoff 1987), art 51 (‘Thus a civilian who takes part in armed combat, either individually or as part of a group, thereby becomes a legitimate target, though only for as long as he takes part in hostilities’).

57 IHL is used to refer to international humanitarian law; IHRL is used to refer to international human rights law.

58 Alexandra Olson, ‘Kingpin's Death Could Mean More Violence in Mexico’, NBC News, 30 July 2010, http://www.nbcnews.com/id/38481971/#.UUyFV1fm3cw.

59 Watkin (2004) (n 54) 1–2.

60 Bergal (n 18) 1066–67.

61 Corn, Geoffrey S, ‘Hamdan, Lebanon, and the Regulation of Armed Conflict: The Need to Recognize a Hybrid Category of Armed Conflict’ (2006) 40 Vanderbilt Journal of Transnational Law 295.

62 Corn and Blank (n 36) 2–5; see also Advisory Service on International Humanitarian Law, ‘What is International Humanitarian Law?’, ICRC, July 2004, http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf.

63 Bergal (n 18) 1080.

64 The intensity and scope of the conflict between the Mexican government and domestic drug cartels have forced the Mexican government to respond not only with law enforcement forces, but also military forces, in a continuing and escalating conflict. The nature of both the Mexican drug war and the corresponding military response transform this conflict from mere criminal activity to an armed conflict, to which the law of armed conflict should apply. Consequently, the Mexican government's recognition of the existence of a NIAC would provide the state with greater latitude to combat the drug cartels by using a level of force that is permitted during an armed conflict. In addition, this categorization would impart a framework for the application of force by the Mexican military. See Bergal (n 18) 1048, 1081 (‘This has been evidenced by the amount of soldiers and police deemed necessary to quell the fighting as well as the nature of the combat, which includes the use of automatic weapons and grenades by the cartels. Adhering to one of the most basic tenets of the law of war, proportionality, the Mexican government has resorted to the employment of the military forces to combat the cartels’).

65 Attorney General's Reference (n 4).

66 ibid 106.

67 ibid 111.

68 ibid 110.

69 ibid 109.

70 ibid 148.

71 ibid 137.

72 ibid.

73 ibid 132. The critical issue, according to Lord Diplock, was whether the soldier made a reasonable judgment of necessity to justify what is otherwise an unlawful killing – self-defence or the defence of others. Such a judgment requires a reasonable belief that the victim – the object of state violence – was engaged in individual conduct that represented an imminent threat of death or grievous bodily harm as the result of his flight (for example, because he may be able to warn others to enable them to launch an ambush). The House of Lords emphasised that a post hoc assessment of reasonableness required the finder of fact to consider the situation as perceived through the subjective perspective of the defendant, including the nature of the training, equipment and intelligence associated with his mission (ibid at 147–48).

74 ibid 136.

75 McCann and Others v United Kingdom (1995) 21 EHRR 97.

76 ibid para 1.

77 ibid paras 13–15.

78 ibid para 14.

79 ibid para 24.

80 ibid para 38.

81 ibid paras 39–47.

82 ibid paras 61–62.

83 ibid para 93.

84 ibid para 99.

85 ibid para 203.

86 ibid para 204.

87 ibid para 213.

88 ibid para 214.

89 Corn (n 54) 74.

90 ibid 76.

91 ibid.

92 ibid. In times of peace, the law presumes that most individuals encountered by law enforcement personnel are autonomous, law-abiding and peaceful. As a result, the burden is clearly placed on the government agent to justify a use of force in response to facts that rebut this presumption. This also means that the government agent bears the risk that an individual may in fact be deviating from this presumptive inoffensiveness. During armed conflict, no such burden is imposed on the government actor – the soldier. Instead, the presumption of hostility triggered by a status determination permits what may often be a factually overbroad use of force, which includes an attack on an enemy belligerent who, in fact, poses no real hostile threat at the time of attack (such as enemy belligerents attacked while sleeping or ambushed while unaware of an enemy presence).

93 ibid 77.

94 For an analysis of the extent of belligerent targeting authority, see Corn, Geoffrey S and others, ‘Belligerent Targeting and the Invalidity of the Least Harmful Means Rule’ (2013) 89 International Legal Studies 536; see also Parks, W Hays, ‘No Mandate, No Expertise, and Legally Incorrect’ (2010) 42 New York University Journal of International Law and Policy 769.

95 Corn and Jenks (n 55) 359.

96 ibid.

97 ibid.

98 ibid 343.

99 Corn (n 54) 75–77.

100 ibid 77–78.

101 ibid 85; Corn and Jenks (n 55) 345; see also Robert Chesney, ‘Ohlin on Capture-or-Kill’, Lawfare.org, 8 March 2013, http://www.lawfareblog.com/2013/03/ohlin-on-capture-or-kill/ (Capture-Kill Debates) (which lists several links to capture or kill discussions).

102 Corn (n 54) 87.

103 ibid 80–82.

104 US Department of Army, ‘Rifle Marksmanship M-16-/M4-Series Weapons’, Field Manual 3-22.9, August 2008, Table 2–1, 4–48, 5–70, 7–31, http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm3_22x9.pdf.

105 ibid; see also Blank, Laurie R, ‘Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self Defense Justifications’ (2012) 38 William Mitchell Law Review 1655, 1671; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3, (AP I) art 40; Sassoli, Marco and Olson, Laura M, ‘The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 871 International Review of the Red Cross 599, 605–06 (‘Combatants may be attacked at any time until they surrender or are otherwise hors de combat, and not only when actually threatening the enemy’).

106 AP I, ibid art 41.

107 Tennessee v Garner 471 US 1, 11–12 (1985) (‘Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given’).

108 Schabas, William A, ‘Parallel Applicability of International Humanitarian Law and International Human Rights Law: Lex Specialis? Belt and Suspenders? The Parallel Operations of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum’ (2007) 40 Israel Law Review 592, 604.

109 Attorney General's Reference (n 4) 105, 136–37:

To kill or seriously wound another person by shooting is prima facie unlawful … A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large … What amount of force is ‘reasonable in the circumstances’ for the purpose of preventing crime is, in my view, always a question for the jury in a jury trial, never a ‘point of law’ for the judge ... The form in which the jury would have to ask themselves the question in a trial for an offence against the person in which this defence was raised by the accused, would be: Are we satisfied that no reasonable man (a) with knowledge of such facts as were known to the accused or reasonably believed by him to exist (b) in the circumstances and time available to him for reflection (c) could be of opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape justified exposing the suspect to the risk of harm to him that might result from the kind of force that the accused contemplated using?

110 McKerr and Others v United Kingdom (2001) 34 EHRR 553, para 111.

111 Corn, Geoffrey S and Blank, Laurie R, ‘The Laws of War: Regulating the Use of Force’ in McNulty, Timothy J, Rosenzweig, Paul and Shearer, Ellen (eds), National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers (American Bar Association 2012) 97, 114; see also Hays Parks (n 94) 809–10; Murphy, Richard and Radsan, Afsheen J, ‘Due Process and Targeted Killing of Terrorists’ (2009) 32 Cardozo Law Review 405, 417.

112 See Pictet (n 37) (discussing and listing the criteria for a NIAC), Common Article 3:

The discussions at the Conference brought out clearly that it is not necessary for an armed force as a whole to have laid down its arms for its members to be entitled to protection under this Article. The Convention refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment as he would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question will be taking no further part in the fighting.

Pictet (n 37) Common Article 2 (Note: Article 2 is common to all four of the Geneva Conventions of 1949):

By its general character, [Common Article 2] deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for recognition of the existence of a state of war ... Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

113 Pictet (n 37) Common Article 3.

It was suggested that the term ‘conflict’ should be defined or – and this would come to the same thing – that a list should be given of a certain number of conditions on which the application of the Convention would depend. The idea was finally abandoned, and wisely so. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria.

114 Reid, Melanie, ‘Mexico's Crisis: When There's a Will, There's a Way’ (2012) 37 Oklahoma City University Law Review 397, 401; see also Bergal (n 18) 1045–46, 1048.

115 US Department of Army, ‘Operations’ Field Manual 3-0, February 2008.

116 Finogenov and Others v Russia App No 18299, (ECtHR 20 December 2011) para 211, 213, 226:

That being said, the Court may occasionally depart from that rigorous standard of ‘absolute necessity’. As the cases of Osman, Makaratzis, and Maiorano and Others (all cited above) show, its application may be simply impossible where certain aspects of the situation lie far beyond the Court's expertise and where the authorities had to act under tremendous time pressure, and where their control of the situation was minimal … The hostage-taking came as a surprise for the authorities (see, in contrast, the case of Isayeva v Russia, App No 57950/00 (ECtHR 24 February 2005) para 180 et seq.), so the military preparations for the storming had to be made very quickly and in full secrecy… [i]n such a situation the Court accepts that difficult and agonising decisions had to be made by the domestic authorities. It is prepared to grant them a margin of appreciation, at least in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt … In sum, the situation appeared very alarming. Heavily armed separatists dedicated to their cause had taken hostages and put forward unrealistic demands … [t]he Court concludes that there existed a real, serious and immediate risk of mass human losses and that the authorities had every reason to believe that a forced intervention was the ‘lesser evil’ in the circumstances').

Theresa Reinold, ‘State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11’ (2011) 105 American Journal of International Law 244, 245–46:

While the incidents analyzed below reveal a certain degree of legal uncertainty as to the exact contours of the emerging legal regime governing the defensive use of force, state practice clearly indicates that the law is undergoing transformation and that the majority of states agree on the need to adapt existing rules to the changes in geopolitical realities. As we shall see later on, this process of transformation is most visible in states' changed interpretations of the principles of immediacy and necessity, which are nowadays understood in more contextualized and permissive terms … include[d in the study are] Russia's strikes against Chechen positions on Georgian territory, Uganda's use of force against rebels operating on the territory of the Congo, Israel's invocation of the right to self-defense in response to Hezbollah attacks from Lebanon, Colombia's anti-FARC raids on Ecuadorian soil, Turkey's military offensive in pursuit of PKK fighters in northern Iraq … [t]he right to self-defense is subject to an elaborate framework of checks and balances to hedge against abuse.

117 Alexander, Janet Cooper, ‘John Yoo's War Powers: The Law Review and the World’ (2012) 100 California Law Review 331; see also Williams, Daniel R, ‘Averting a Legitimation Crisis and the Paradox of War on Terror’ (2008–09) 17 Michigan State Journal of International Law 493; Haridakis, Paul, ‘The Tension Between National/Homeland Security and the First Amendment in the New Century’ (2005) 14 Temple Political and Civil Rights Law Review 433; Martinez, Jenny S, ‘Process and Substance in the “War on Terror”’ (2008) 108 Columbia Law Review 1013; Rodriguez, Shawn D, ‘Caging Careless Birds: Examining Dangers Posed by the Willful Blindness Doctrine in the War on Terror’ (2008) 30 University of Pennsylvania Journal of International Law 691. After 9/11, in addition to engaging the perpetrating belligerents in Iraq and Afghanistan, the US ‘War on Terror’ involved implementing domestic measures as well. These policies and actions were criticised by many for having encroached on civil liberties typically left undisturbed under normal peacetime law enforcement. The policies and actions encompassed areas such as detention, interrogation, military commissions, surveillance and others, with the main debate bordering on the blurred line between national security/armed conflict necessities versus individual rights/peacetime regimes. Over a decade later (including several Supreme Court cases), many of these debates are still unresolved.

118 Hampson (n 34).

119 Corn, Geoffrey S, ‘Geography of Armed Conflict: Why it is a Mistake to Fish for the Red Herring’ (2013) 89 Naval War College International Law Studies 77.

120 See, eg, Corn (n 54); see also Corn (n 61); Corn, Geoffrey S and Jensen, Eric Talbot, ‘Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations’ (2009) 42 Israel Law Review 45.

121 Instead, these experts believe that non-state operatives must be considered as civilians directly participating in hostilities and, as a result, lose their protection from deliberate attack for such time as the direct participation continues. Thus, even when attack is authorised, it must be conduct based, because the authority to attack results from the conduct of direct participation in hostilities: Sandoz, Swinarski and Zimmermann (n 56) 681.

122 See Corn and Jenks (n 55).

123 Capture-Kill Debates (n 101).

124 In contrast, conduct-based ROE define the conduct that triggers the authority to use force. This will normally be described as ‘hostile act or hostile intent’. Pursuant to this type of ROE, each use of force must be predicated by an individualised assessment that the object of attack poses an imminent threat of death or grievous bodily harm, to the responding soldier or to some other individual defined as falling within her protective authority (such as other members of the soldier's unit, or in certain situations other designated individuals such as aid workers, civilian contractors, or perhaps even local civilians). Conduct-based ROE also normally require a proportional use of force in response to the threat, thereby limiting resort to deadly force to situations when that level of force is assessed as absolutely necessary.

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
  • URL: /core/journals/israel-law-review
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