Mindy Cooper's List: Tutorial

• Common Article   2 specifies that the Conventions 'apply to all cases of declared   war or of any other armed conflict which may arise between two   or more of the High Contracting Parties, even if the state of   war is not recognized by one of them'. Thus the existence or   non-existence of a declaration of war, or a formal state of   war, is not necessary for the application of the Conventions.   Despite such provisions, the laws of war in general, and the   Geneva Conventions in particular, have often proved difficult   to apply in anti-terrorist military operations.
• The laws of war are not the only body of law potentially relevant   to the consideration of terrorist actions.
• In strict legal terms, the law relating to the right to resort   to the use of force (jus ad bellum) and the law governing   the actual use of force in war (jus in bello) are separate.   The latter applies to the conduct of international conflict   irrespective of the issue of the right of the belligerents to   resort to the use of force.
• First, in all military operations, whether or   not against terrorists, a perception that a state or a coalition   of states is observing basic international standards may contribute   to public support within the state or coalition; support, or   at least tacit consent, from other states; and avoidance of   disputes within and between coalition member states.
• if the coalition were to violate jus in bello in a major   way, for example by committing atrocities, that would help the   cause of the adversary forces and even provide them with a justification   for their resort to force under jus ad bellum.
• in anti-terrorist campaigns in particular, a basis for engaging   in military operations is often a perception that there is a   definite moral distinction between the types of actions engaged   in by terrorists and those engaged in by their adversaries.   Observance of jus in bello can form a part of that moral   distinction.
• when armed   conflict by a coalition is combined with the application of   general UN sanctions against the adversary state, the scope   for traditional (i.e. impartial) neutrality is indeed limited   - especially so when, as in the case of al-Qaeda, the adversary   operates in numerous states, which are required by the UN   to take a range of measures against it.
• Because the terrorists   started the war, it is sometimes argued, they are responsible   for all the death and destruction that ensues. Such a view,   implying that the peculiar circumstances involved in the jus   ad bellum might override certain considerations of jus   in bello in the war that follows, has no basis in the   law. There was evidence of such thinking in some statements   made in the US in connection with Afghanistan. In early December,   discussing civilian casualties, US Secretary of Defense Donald   Rumsfeld said: 'We did not start this war. So understand,   responsibility for every single casualty in this war, whether   they're innocent Afghans or innocent Americans, rests at the   feet of the al-Qaeda and the Taliban'.⁷
• As a US Army manual succinctly   interprets it, 'the loss of life and damage to property incidental   to attacks must not be excessive in relation to the concrete   and direct military advantage expected to be gained'.⁸   This meaning of proportionality is an important underlying   principle of jus in bello
• It exists   alongside the principle of military necessity, which is defined   in the US Army manual as one that 'justifies those measures   not forbidden by international law which are indispensable   for securing the complete submission of the enemy as soon   as possible'.⁹
• Neither all terrorist activities, nor all anti-terrorist   military operations, even when they have some international   dimension, necessarily constitute armed conflict between states.   Terrorist movements themselves generally have a non-state   character. Military operations between a state and such a   movement, even if they involve the state's armed forces acting   outside its own territory, are not necessarily such as to   bring them within the scope of application of the full range   of provisions regarding international armed conflict in the   1949 Geneva Conventions and the 1977 Geneva Protocol I.¹¹
• Anti-terrorist operations may assume the form of actions   by a government against forces operating within its own territory;   or, more rarely, may be actions by opposition forces against   a government perceived to be committing or supporting terrorist   acts. In both these cases, the conflict may have more the   character of non-international armed conflict (that is, civil   war) as distinct from international war. Fewer laws-of war   rules have been formally applicable to civil as distinct from   international war, although the situation is now changing   in some respects.
• the attributes and actions of a terrorist   movement may not come within the field of application even   of the modest body of rules relating to non-international   armed conflict. Common Article 3 of the 1949 Geneva Conventions   is the core of these rules, but says little about the scope   of application. The principal subsequent agreement on non-international   armed conflict, the 1977 Geneva Protocol II, is based on the   assumption that there is a conflict between a state's armed   forces and organised armed groups which, under responsible   command, exercise control over a part of its territory, and   carry out sustained and concerted military operations. The   protocol expressly does not apply to situations of internal   disturbance and tension, such as riots, and isolated and sporadic   acts of violence.¹²
• Since terrorist forces often have little regard for   internationally agreed rules of restraint, the resolve of   the anti-terrorist forces to observe them may also be weakened,   given the low expectation of reciprocity and the tendency   of some part of the public under attack to overlook any breaches   by their own forces.
• A basic principle of the laws of war is that attacks   should be directed against the adversary's military forces,   rather than against civilians. This principle, violated in   terrorist attacks specifically directed against civilians,   can be difficult to apply in anti-terrorist operations, because   the terrorist movement may not be composed of defined military   forces that are clearly distinguished from civilians.
• Some captured personnel who are members of a terrorist   organization may not meet the criteria for PoW status as set   out in the 1949 Geneva Convention III. In particular, such   personnel may fail to pass the tests of 'belonging to a Party   to the conflict', 'being commanded by a person responsible   for his subordinates', 'wearing a fixed distinctive sign',   and 'conducting their operations in accordance with laws and   customs of war'. However, even if they are not entitled to   PoW status, such persons should still be treated humanely.   (The question of prisoners is discussed in greater detail   below.)
• To   refer to such a framework, which recognises rights and duties,   might seem to imply a degree of moral acceptance of the right   of any particular group to resort to acts of violence, at   least against military targets.¹³
• When, on 29 January   1987, President Reagan explained why he was not recommending   Senate approval of 1977 Geneva Protocol I additional to the   1949 Geneva Conventions, he mentioned that granting combatant   status to certain irregular forces 'would endanger civilians   among whom terrorists and other irregulars attempt to conceal   themselves'. In addition, he indicated a concern that the   provisions would endanger US soldiers when he stated in very   general terms that 'the Joint Chiefs of Staff have also concluded   that a number of the provisions of the protocol are militarily   unacceptable'. He argued that US repudiation of the protocol   was an important move against 'the intense efforts of terrorist   organisations and their supporters to promote the legitimacy   of their aims and practices'.¹⁴
• In military operations with the purpose   of stopping terrorist activities, there has been a tendency   for counter-terrorist forces to violate basic legal restraints.   There have been many instances in which prisoners were subjected   to mistreatment or torture. In some cases, excesses by the   government or by intervening forces may have contributed to   the growth of a terrorist campaign against it. External states   supporting the government have sometimes contributed to such   excesses. Applying pressure on a government or army to change   its approach to anti-terrorism, to bring it more into line   with the laws of war and human-rights law, can be a difficult   task.
• Within functioning   states, terrorist campaigns have often been defeated through   slow and patient police work (sometimes with military assistance)   rather than major military campaigns; for example, the actions   against the Red Army Faction in Germany and the Red Brigades   in Italy in the 1970s. The British military and police operation   against 'Communist Terrorists' in Malaya after 1948 is a good   example (in a colonial context) of a long-drawn-out and patient   anti-terrorist campaign that was eventually successful.
• In other contexts, too, Western armed forces, engaging with   adversaries showing at best limited respect for ethical and   legal restraints, have themselves managed to observe basic   rules of the laws of war. This was the case in the 1991 Gulf   War, in which Iraq mistreated prisoners, despoiled the environment   and had to be warned in brutally clear terms not to engage   in chemical or biological attacks and terrorist operations.   The US-led Gulf coalition sought to observe the law not because   of any guarantee of reciprocity, but because such conduct   was important to the maintenance of internal discipline, and   of domestic and international support. Similar conclusions   were drawn from the 1999 Kosovo War.

• The US armed forces have indicated their intention to observe   the rules governing international armed conflicts, even in   situations which may differ in certain respects from the classical   model of an inter-state war. A principle codified in the Standing   Rules of Engagement issued by the US Joint Chiefs of Staff   on 15 January 2000 spells this out:
     

    US forces will comply with the Law of War during military   operations involving armed conflict, no matter how the conflict   may be characterized under international law, and will comply   with its principles and spirit during all other operations.¹⁸
• the new type of US bombing   campaign is that, in the eyes of third parties, it can easily   look as if the US puts a lower value on the lives of Iraqis   or Serbs or Afghans than it does on its own almost-invulnerable   aircrews: a perception which can feed those hostile views   of the US that help to provide a background in which terrorism   can flourish.
• In an anti-terrorist war, as in other wars, there can be strong   prudential considerations that militate in favour of observing   the laws of war. These include securing public and international   support; ensuring that terrorists are not given the propaganda   gift of atrocities by their adversaries; and maintaining discipline   and high professional standards in the counter-terrorist forces.

• that   all parties to the conflict are bound to comply with their   obligations under international humanitarian law and in particular   the Geneva Conventions of 12 August 1949, and that persons   who commit or order the commission of grave breaches of the   Conventions are individually responsible in respect of such   breaches.
   

   
     

  The   reference to grave breaches would appear to suggest that the   Security Council viewed all the rules of the 1949 Geneva Conventions   as applicable, and not just common Article 3, which deals   with civil war. The clear terms of this resolution are a reminder   that, three years before it became directly involved, the   US as well as other powers did view the laws of war as applicable   to the Afghan conflict.
• The ICRC   subsequently issued some public statements on the application   of the laws of war in this crisis, reminding all the parties   involved - the Taliban, the Northern Alliance and the US-led   coalition - of their obligations to respect the law, and stating   that the ICRC was continuing a wide range of activities inside   Afghanistan.²⁰
• perhaps   be best characterised as 'internationalised civil war'. This   is not a formal legal category, but an indication that the   rules pertaining to both international and civil wars may   be applicable in different aspects and phases of the conflict.²¹
• 1907 Hague Convention IV on land warfare applies because of   its status as customary law, binding on all states whether   or not parties to the treaty. In addition, Afghanistan, and   also the main members of the international coalition, are   parties to the following agreements:
   
    • the 1925 Geneva Protocol on gas and bacteriological   warfare;
   
    • the 1948 Genocide Convention;
   
    • the four 1949 Geneva Conventions.
   
    While some of the states involved are parties to certain additional   agreements, the above-named treaties provide the basic treaty   framework for considering the application of the law in this   particular armed conflict. In addition, rules of customary   international law apply, including certain provisions of 1977   Geneva Protocol I that are accepted as having that status
• The 1948 Genocide Convention is   considered to apply to non-international as well as international   armed conflict. In the 1949 Geneva Conventions, common Article   3 lists certain minimum provisions for humane treatment of   those taking no active part in hostilities that are to be   applied in non-international armed conflict.
• Difficult practical issues facing the coalition   included: the need to conduct operations discriminately; the   possibility that adversary forces might mistreat or execute   coalition prisoners; the possibility that some enemy personnel   facing capture might be reluctant to surrender their weapons,   and that they might not qualify for PoW status; maintenance   of order (and avoidance of looting and revenge killings) in   liberated towns; how to bring pressure on Northern Alliance   forces to observe basic norms; and assistance for humanitarian   relief operations.
• The lesson of other modern   wars has been confirmed: that the press plays a critical role   in repeatedly raising matters germane to the laws of war.
• The need for humanitarian relief is particularly likely   to arise in anti-terrorist operations against a weak or failed   state, because such states breed conditions in which terrorist   movements can operate and large-scale human misery can occur.   The fact of a war being against terrorists, while it may affect   the mode of delivery (since land convoys may be vulnerable   to seizure) does not affect the law applicable to the provision   of relief. The basic obligations of the various parties to   an armed conflict to assist in and protect humanitarian relief   operations are embodied in 1949 Geneva Convention IV, on civilians.²⁴
• collapse of the Taliban regime in early December 2001 and   its replacement by the interim administration facilitated,   but by no means guaranteed, the secure delivery of aid by   land routes.

• An unpublished document circulated by the USAF's   International and Operations Law Division on 21 September   2001 outlined the dimensions of the problem: terrorists were   to be treated as 'unlawful combatants'; it was 'very unlikely   that a captured terrorist will be legally entitled to PoW   status under the Geneva Conventions'; however, there was a   'practical US interest in application of Law of Armed Conflict   principles in the context of reciprocity of treatment of captured   personnel.' As regards treatment upon capture,
     

    if a terrorist is captured, Department of Defense members   must at the very least comply with the principles and spirit   of the Law of Armed Conflict … A suspected terrorist captured   by US military personnel will be given the protections of   but not the status of a PoW.³⁷
• killing   of a large number of Taliban and al-Qaeda prisoners following   the revolt at Qala-e Jhangi Fort near Mazar-e Sharif in the   period 25 November -1 December 2001.
• They also include members of certain   other militias and volunteer corps, including those of organised   resistance movements, belonging to a party to the conflict,   provided that they meet certain criteria: they must be under   a responsible command system; wear a fixed distinctive sign;   carry arms openly; and conduct their operations in accordance   with the laws of war. Members of regular armed forces who   meet such criteria may well be lawful combatants even if the   regime that they serve is not recognised as the lawful government   of the state. Lawful combatants are entitled to PoW status   and all of the rights set forth in the Geneva Convention III.   Lawful combatants cannot be punished for the mere fact of   having participated directly in hostilities, but they can   be tried for any violations of international law, including   the laws of war, they may have committed.
• Many belligerents failing to meet one of the criteria were   viewed as entitled to PoW status, but not all were.⁴³
• current US military manuals two terms with apparently identical   meaning, 'unlawful combatants' and 'illegal combatants', are   used to refer to those who are viewed as not being members   of the armed forces of a party to the conflict and not having   the right to engage in hostilities against an opposing party.⁴⁴   Such combatants can face penal sanctions for participating   directly in hostilities and for other acts they may commit,   and they do not have the right to PoW status; but they do   retain a claim to certain fundamental guarantees regarding   their detention and any judicial proceedings against them.
• in cases of doubt, prisoners shall be treated as PoWs   'until such time as their status has been determined by a   competent tribunal'.
• The   US Army manual states unequivocally: 'When doubt exists as   to whether captured enemy personnel warrant PW [prisoner of   war] status, Art. 5 Tribunals must be convened'.⁴⁵
• Any state with   a claim to act legally in international relations, even if   not itself a party to the 1977 Geneva Protocol I (neither   the US nor Afghanistan is a party), must take the rules in   Article 75 seriously as the minimum standards, especially   as these provisions are viewed as customary law.⁴⁶
• In 1967-68, during the US involvement in Vietnam, the US issued   directives to classify Viet Cong main force and local force   personnel, and certain Viet Cong irregulars, as PoWs. This   was despite the existence of doubts and ambiguities as to   whether these forces met all the criteria in Article 4 of   the 1949 Geneva Convention III. However, there was a significant   exception in respect of terrorism. Viet Cong irregulars were   only to be classified as PoWs if captured while engaging in   combat or a belligerent act under arms, 'other than an act   of terrorism, sabotage, or spying'. There was provision for   establishing Article 5 tribunals to determine, in doubtful   cases, whether individual detainees were entitled to PoW status.   Those not entitled to such status were to be transferred to   the South Vietnamese authorities.⁴⁸

• On 11   January 2002, when asked whether the ICRC would have any access   to the prisoners who had just been taken to the US naval base   at Guantanamo Bay in Cuba, Rumsfeld stated:  

  
    I think that we're in the process of sorting through precisely   the right way to handle them, and they will be handled in   the right way. They will be handled not as prisoners of war,   because they're not, but as unlawful combatants. The, as I   understand it, technically unlawful combatants do not have   any rights under the Geneva Convention. We have indicated   that we do plan to, for the most part, treat them in a manner   that is reasonably consistent with the Geneva Conventions,   to the extent they are appropriate, and that is exactly what   we have been doing.⁴⁹
• Rumsfeld, contrary to his earlier   statement, recognised that 'under the Geneva Convention, an   unlawful combatant is entitled to humane treatment'.⁵⁰
• On 7 February, the White House, in the first major policy   statement on the issue, announced that Taliban prisoners were   covered under Geneva Convention III, but al-Qaeda members   were not. While neither group was accorded full PoW status,   the White House gave detailed assurances about their treatment.
• Two considerations contributed to the US determination not   to classify as PoWs prisoners taken in Afghanistan: the first   related to conditions of detention of prisoners, and the second   to the conduct of judicial proceedings.
• In certain other respects, too, there could be difficulties   in treating some of the prisoners as normal PoWs. For example,   a practice that is normally pursued after a war - releasing   and repatriating prisoners - is complicated in this case by   three considerations. First, while the war in Afghanistan   may be concluded at a definite date, it may be decades before   the 'war on terror' can be declared to be over for the US.   Second, unlike PoWs in a 'normal' inter-state war, the prisoners   concerned might continue to be extremely dangerous after release,   given their training and motivation to commit acts of terrorism.   Third, their countries of origin might refuse to accept them   back, except perhaps as prisoners.
• President Bush's Military Order of 13 November 2001 provides   for the option of trying certain accused terrorists by military   commissions operating under special rules. It specifies that   individual terrorists, including members of al-Qaeda, can   be detained and tried 'for violations of the laws of war and   other applicable laws', and that the military commissions   would not be bound by 'the principles of law and the rules   of evidence generally recognized in the trial of criminal   cases in the United States district courts'. It also contains   some extremely brief provisions for humane conditions of detention,   and provides for the Secretary of Defense to issue detailed   regulations on such matters as the conduct of proceedings   of the military commissions.⁵³
• On 30 November 2001, the   President's Counsel offered several assurances, including   that such commissions are one option, but not the only option.⁵⁵
• The handling   of this issue was a potential threat to coalition unity. The   controversies over the prisoner question had a special resonance   because of the concern of other countries that the US had   been moving towards unilateralism generally, on a wide range   of matters: in this perspective, fairly or unfairly, the US   reluctance to accept the full application of the 1949 Geneva   Convention III on PoWs to those particular prisoners was seen   as one more example of a selective approach to international   law. The White House statement of 7 February, while not answering   all concerns, provided reassurance that US polices would follow   provisions of the Geneva Conventions.

48 more annotations...

• Two categories of armed conflicts are recognized in international humanitarian law as 

   

  legal  categories  triggering  its  formal  application:  international  and  non-international  armed 

   

  conflicts.  The  largest  and  most  developed  part  of  international  humanitarian  law  regulates 

   

  international  armed  conflicts,  which  were  defined  in  Article  2,  common  to  all  four  Geneva 

   

  Conventions  (common  Article  2),  as  armed  conflicts  ‘between  two  or  more  High  Contracting 

   

  Parties’

• the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
   
   The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
   
   Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
• armed conflict not of an international character
• In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

1 more annotation...

•  According to Cassese, ‘an armed conflict which 

   

  takes place between an Occupying Power and rebel or insurgent groups – whether or not they 

   

  are  terrorist  in  character  –  in  an  occupied  territory,  [likewise]  amounts  to  an  international 

   

  armed conflict’
• since  contemporary  trans-national  terrorist  groups  increasingly  operate 

   

  independently  from  any  State  and  often  do  not  fit  the  definition  of  a  national  liberation 

   

  movement in the sense of AP I, eventual hostilities between them and a State or group of States 

   

  might have more the character of a non-international rather then international armed conflict. 

   

  This covers scenarios in which a State is fighting terrorist groups either in its own territory or in 

   

  a foreign territory, when the host State is not involved in hostilities.

•  the  AP  II  is  itself  an  unreliable  source  of  humanitarian  protections  in  non-

   

  international armed conflicts, since its application depends on the nature of the non-state armed 

   

  group (responsible command and the ability to implement AP II), on the exercise of a minimum 

   

  control  of  territory  thereby  (exercise  of  de  facto  control  over  a  part  of  a  national  territory, 

   

  sufficient to allow military operations of a sustained and concerted character to be carried out) 

   

  and on intensity of military operations.

   

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   The underlying difficulty in the context of terrorism is 

   

  that  much  of  the  terrorist  violence  is  perpetrated  by  loosely  organized  groups  or  networks,  or 

   

  individuals  that,  at  best,  share  a  common  ideology,  but  could  hardly  be  characterised  as  a  well 

   

  organized insurgency, qualifying as a ‘party’ to a conflict within the traditional meaning of AP II.