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MISPLACED RELIANCE
ON THE “LAW OF WAR”
JOHN CERONE∗
INTRODUCTION
It is not uncommon for a legal subject to interpret the law in a way
that serves its own interests. This would seem to apply a fortiori in a system
that lacks a central authority with interpretive power and where the general
practice is for the subjects themselves to interpret the rules governing their
conduct.
It is therefore not surprising that the United States would advance an
expansive interpretation of its rights under international law while
simultaneously maintaining a narrow interpretation of its duties.
Nonetheless, the scope of permissible interpretation is restricted by
principles of reasonableness and good faith. In the absence of a central
interpretive authority in the international legal system, the judgment of
other states provides an indication of that scope, particularly when it has
been exceeded.
From the inception of the United States’ “War on Terror” the
executive branch has claimed authority under international law to use
armed force abroad, and to kill and detain indefinitely those that it deems to
be enemy combatants. Its legal arguments have varied greatly over time,
and have been consistently entwined with policy matters. However, one
consistent element has permeated all of the various forms of its arguments.
Ever since U.S. President George W. Bush classified the September 11,
2001 attacks as “acts of war,” his administration has invoked the “law of
war” as a basis for enhanced authority to respond to those attacks, as well
as what it deems to be related threats.
Invocation of the “war” model served both political and legal
purposes. The focus of this article is the latter. While distinguishing the
∗
Associate Professor of Law and Director of the Center for International Law & Policy
at New England School of Law. The author would like to thank Angela Davis for her
assistance.
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legal from the political is not always easy, it is made even more difficult in
the present context by the use of ambiguous terms.
The term “War on Terror” has no clear scope, and in any event is not
a legal term of art. What is clear is that this phrase encompasses a broad
range of activity, the purported aim of which is the elimination of terrorist
threats. It also includes the use of armed force directed to that end. To the
extent that this use of force rises to the level of armed conflict, the
international law of armed conflict would be applicable. Those dimensions
of the “War on Terror” that do not constitute armed conflict1 would not be
governed by this body of law.
Another ambiguity is introduced by the U.S. government’s use of the
term “law of war.” In international law, this phrase could refer to the jus ad
bellum (i.e., the law regulating recourse to the use of armed force), as well
as the jus in bello (i.e., the law regulating the conduct of hostilities). This
ambiguity is compounded by the use of the term in the context of the U.S.
legal system, in which it may have other meanings.2
The application of international law in this context is also complicated
by the lack of clarity as to the identity of the parties to the conflict. The
parties would appear to include both states and non-state groups. The
identity and nature of the parties has implications for the jus ad bellum, as
well as the jus in bello, as will be discussed below.
These ambiguities appear to have been exploited by U.S. authorities
to maximize the U.S. government’s scope of authority under the law of
war, while avoiding the application of any of its restraints. By parsing
through the various potential meanings of U.S. claims, it becomes clear that
they are largely without foundation. Indeed, it would appear that
international law provides little of the authority claimed by the U.S., and
instead primarily imposes legal restraints on U.S. conduct.
1.
2.
The law of armed conflict also applies in times of occupation, even in situations
where an occupation was not preceded by armed conflict. See, e.g. Common Article 2
of the 1949 Geneva Conventions. However, this situation is rare and not directly
relevant to the present analysis.
In addition to the different possible meanings in international law, it could refer to
these bodies of international law as they are understood within the U.S. legal system
(i.e. as interpreted by those empowered under U.S. law to do so). Or, it could refer to
this latter category as supplemented or modified by other related U.S. law, including
common law, legislation, and other legal instruments. See John Cerone, The Military
Commissions Act of 2006: Examining the Relationship between the International Law
of Armed Conflict and U.S. Law, ASIL Insight (Nov. 13, 2006), http://www.asil.org/
insights/2006/11/insights061114.html.
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I.
59
THE JUS AD BELLUM3
The jus ad bellum regulates the use of armed force by states against
other states. Thus, to the extent the United States uses armed force on the
territory of or against other states, jus ad bellum issues arise.
Article 2(4) of the U.N. Charter sets forth one of the principal rules of
the organization as well as a fundamental norm of the post-World War II
international legal system. It sets forth a comprehensive prohibition of the
use of force by states “against the territorial integrity or political
independence of any state.”4 While the precise scope of the term “force” is
not clearly established, it is universally agreed that its scope includes any
use of armed force. There are only two universally accepted exceptions to
this prohibition. The first is the use of armed force in self-defense, as
expressed in Article 51 of the Charter; the second is pursuant to Security
Council authorization.5
There is yet another situation in which a state may use armed force on
the territory of another state. Where the territorial state consents to this use
of force, e.g., where the assistance of a third state is requested in
responding forcibly to a threat in the requesting state’s territory, the Article
2(4) prohibition is not implicated, as this use of force would not be “against
the territorial integrity or political independence of” the requesting state.
As noted above, one feature of the War on Terror is that it seems to
entail, at least in part, the use of armed force against non-state organized
armed groups. The jus ad bellum does not specifically address this
situation. Thus, when a state uses military force against a non-state group
acting within the state’s own territory, jus ad bellum issues generally do not
arise.6 However, where a state uses armed force against such a group on the
territory of another state, the jus ad bellum would be applicable.
An examination of the possible legal justifications for the 2001 U.S.
invasion of Afghanistan may be instructive. There are at least three
possible justifications for the use of armed force by the United States in
that context, corresponding to the three possibilities identified above: self3.
4.
5.
6.
This section is based on the author’s public lecture at Cornell Law School on 28
February 2002. See generally, John Cerone, Post-9/11 Developments in the Jus ad
Bellum and Jus in Bello, Killing Enemies, Killing Innocents: Changes in
Humanitarian Law and the Rules of War in Response to September 11, 2001, Cornell
International Law Journal Symposium (Feb. 28, 2002) (presentation notes on file at
New England Journal of International and Comparative Law).
U.N. Charter art. 2, para. 4.
See U.N. Charter ch. VII.
This would also likely be the case for a use of force against such groups in global
common spaces, such as on the high seas, so long as the rights of other states were
not thereby infringed.
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defense, security council authorization, and consent.
Immediately after the September 11, 2001 attacks, the United States
asserted that those attacks constituted an armed attack within the meaning
of Article 51 of the Charter, giving rise to a right to use armed force in selfdefense. This position appeared to be adopted as well by NATO and the
OAS.7 It could also be argued that the UN Security Council endorsed this
position as well through its re-affirmations of the right of self-defense in a
series of resolutions relating to the attacks. However, the reaffirmations
were formulated in the abstract and confined to the preambular text of these
resolutions, and the Council never expressly determined that the United
States had been the victim of an “armed attack” or that the right of selfdefense was applicable.8
The main difficulty with this position is that Article 51’s reference to
an “armed attack” has been traditionally understood to refer only to an
armed attack by a state.9 Indeed, the right of self-defense was not thought
to apply to a use of armed force between a state and a non-state group, as
this was not regulated by the jus ad bellum. The state would be free to use
armed force against such a group so long as the rights of other states were
not infringed. Thus, an armed attack by a non-state group could not give
rise to a right of self-defense vis-à-vis a third state, even if that non-state
group was operating within that state.
Another possible justification could be Security Council
authorization. As noted above, the Council adopted a number of Chapter
VII10 resolutions in the wake of the attacks. However, none of them
explicitly authorized the use of armed force against Afghanistan.11 Past
practice of the Security Council has been understood as requiring express
authorization.
Finally, the United States could have sought the consent of the then
Representative of Afghanistan to the United Nations, who represented a
government that had been in place during the 1990s and had been
dislodged from power. Notwithstanding the fact that the Taliban was the de
7.
8.
9.
10.
11.
See John Cerone, Comment: Acts of War State Responsibility in Muddy Waters: The
Non-state Actors Dilemma, ASIL Insight (Sept. 2001), http://www.asil.org/insights/
insigh77.htm#comment.
See, e.g., S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001); S.C. Res. 1373,
U.N. Doc. S/RES/1373 (Sept. 28, 2001).
This understanding was recently reaffirmed by the International Court of Justice. See
Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161 (Nov. 6).
Chapter VII sets forth the enforcement power of the Security Council.
The resolutions’ re-affirmations of self-defense would not constitute Council
authorization, but could bolster the argument that the situation gave rise to the right
of self-defense, as noted above.
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facto government of Afghanistan, the United States could have argued that
the failure of the Taliban to attract international recognition, combined with
the continuing recognition by the United Nations of this representative of
the earlier regime, meant that this prior regime had the capacity to consent
on behalf of the state of Afghanistan, thus vitiating application of the jus ad
bellum. The main difficulties with this argument were that the Taliban was
in fact in control of the vast majority of the territory of Afghanistan and
that the prior regime ceased to have a clear identity or governmental
structure.
Ultimately, the United States grounded its claim in the right of selfdefense.12 This was made explicit through notification to the Security
Council undertaken pursuant to Article 51. It is likely that the United States
chose this justification in order to establish a precedent for future
operations taken in response to comparable circumstances.13
However, as noted above, the right of self-defense has been
understood as arising in response to an armed attack by a state. Under
international law as it existed at the time,14 in order for a right to invade
Afghanistan15 to arise in response to the September 11 attacks by al Qaeda,
the United States would have to show that there had been an armed attack
12.
13.
14.
15.
It is significant to note that the United States continues to base the legality of the
presence of its armed forces in Afghanistan on the right of self-defense. This could
imply that the law of international armed conflict continues to apply in the
relationship between the United States and Afghanistan.
If the United States had based its use of armed force on consent or Security Council
authorization, it may have set a precedent that doing so was required in comparable
circumstances.
It is arguable that the jus ad bellum has been modified by the U.S. practice combined
with the acceptance of that practice by the international community. The vast
majority of states acquiesced in the U.S. invasion of Afghanistan, in contrast to their
response to the 2003 invasion of Iraq. In addition, a number of states and
intergovernmental organizations expressly invoked Article 51 of the Charter,
indicating their understanding of its applicability. Under the Vienna Convention on
the Law of treaties, in interpreting treaty obligations, “[t]here shall be taken into
account, together with the context: . . . any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its interpretation.”
See Vienna Convention on the Law of Treaties art. 31(3)(b), May 23, 1969, 1155
U.N.T.S. 331. However, in a judgment rendered well after the U.S. invasion of
Afghanistan, the ICJ affirmed the traditional interpretation of the right of selfdefense. See Iran v. United States, supra note 9.
Some might argue that there was in fact no use of armed force against Afghanistan
since only Al Qaeda and the Taliban were attacked, neither being the de jure
government of Afghanistan. However, the prohibition on the use of force is
understood to encompass any use of armed force on the territory of another state
without that state’s consent.
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by Afghanistan. In order for those attacks to be an armed attack16 by
Afghanistan, they would either have to be attributable to Afghanistan
according to the traditional rules of attribution under the law of state
responsibility, or there would have to be a lex specialis for attribution of
armed attacks in the specific context of self-defense claims that would be
satisfied in the 9/11 context.17 While the United States’ notification made
clear that it was invoking the right of self-defense, it did not make clear the
precise legal basis for this claim other than to state that Article 51 was
applicable in the circumstances.
Under the traditional rules of attribution, the conduct of al Qaeda
would not appear to have been attributable to Afghanistan, notwithstanding
the Taliban’s alleged support of al Qaeda. Such support does not meet the
threshold established by the rules of attribution as set forth by the
International Law Commission in its Articles on the Responsibility of
States for Internationally Wrongful Acts.18 Also, there is no clear precedent
for a lex specialis in this area of the law.19
16.
17.
18.
19.
It is assumed for present purposes that the nature of those attacks would qualify as an
“armed” attack.
This lex specialis could take the form of different rules of attribution or a definition
of armed attack that defines specific conduct in such a way as to embed the issue of
attribution into the definition. It may also be the case that the law has evolved through
the international community’s response to the U.S. invasion, of which it was largely
supportive. Thus, this lex specialis may have emerged through this course of conduct.
Another possible subsequent legal development could be that the jus ad bellum now
permits a use of armed force as a countermeasure in response to a breach of an
international obligation of a grave nature and with grave consequences (e.g.
Afghanistan’s persistent failure to surrender Osama bin Laden, which it had been
obliged to do under Chapter VII Security Council resolutions adopted well before the
9/11 attacks). However, this development is unlikely to have occurred given the
fundamental importance attaching to the prohibition of the use of force. Indeed, the
United States itself had previously rejected such an expansion of the jus ad bellum.
See Statement of Acting Secretary of State Kenneth Rush (May 29, 1974), in Arthur
Rovine, Contemporary Practice of the United Sates Relating to Interantional Law, 68
AM. J. INT’L L. 736 (1974) (“[E]ssentially for reasons of the abuse to which the
doctrine or reprisals particularly lends itself, we think it desirable to endeavor to
maintain the distinction between acts of lawful self-defense and unlawful reprisals.”).
While international and regional human rights courts and other bodies have
established a lower threshold for attribution in the context of human rights law, this
development is likely confined to human rights law given the very differing contexts.
See John Cerone, Human Dignity in the Line of Fire, VAND. J. TRANSNAT’L L. (2006).
The ICJ in Nicaraguav. United States analyzed the question of the existence of an
armed attack without explicit reference to the question of attribution. It turned instead
to the definition of aggression set forth by the UN General Assembly in an annex to
its Resolution 3314 (1974). That resolution defined aggression as including, inter alia,
“[t]he sending by or on behalf of a State of armed bands . . . which carry out acts of
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In any event, the international community either supported or
acquiesced in the U.S. invasion of Afghanistan. Even if the invasion was
unlawful at the time it occurred, it was accepted by the international
community and the responsibility of the United States is unlikely to be
invoked.
Nonetheless, the jus ad bellum question, while in principle distinct
from the application of the jus in bello, may have implications for the latter.
If the United States had invaded with the consent of Afghanistan, it would
not have been engaged in an international armed conflict, and would
instead have been engaged in a non-international armed conflict with nonstate groups. By invoking self-defense, it instead appears that the United
States was engaging in an international armed conflict with Afghanistan,
and perhaps also in a non-international armed conflict with al Qaeda to the
extent that al Qaeda may constitute a party to an armed conflict under the
law of non-international armed conflict.20
II. THE JUS IN BELLO
The issue of whether a conflict is international or non-international is
a fundamental threshold question in the application of the international law
of armed conflict. International armed conflict traditionally has been
subject to far more expansive regulation than non-international armed
conflict.
A. The Development of the Law of Non-International Armed
Conflict21
The early codifications of humanitarian law were embedded in the
classical inter-state structure of the international legal system. Since noninternational conflict refers to a dispute other than one between states, it
20.
21.
armed force against another state . . . , or its substantial involvement therein.” G.A.
Res. 3314 (XXIX), Annex, art. 3(g) (1974). The inclusion of the phrase “its
substantial involvement therein” could be viewed as essentially establishing a lower
standard for attribution for acts of aggression. However, the Court did not expressly
address this point. It simply found that the concept of “armed attack” did not include
“assistance to rebels in the form of the provision of weapons or logistical or other
support.” Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 104
(June 27).
The ICJ’s approach to interpreting Common Article 3 suggests the possibility that
two conflicts of different natures could occur simultaneously in the same place. See
Id.
The present analysis focuses on the law of non-international armed conflict as set
forth in Common Article 3 of the Geneva Conventions. It does not encompass the
Additional Protocols to the 1949 Conventions, which have different thresholds for
application.
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was traditionally not a concern of international law. Further, the paradigm
case of non-international armed conflict is internal conflict, e.g., a civil
war. The principle of non-intervention generally prevented international
regulation of such conflicts.22
The Hague Conventions of 1899 and 1907, for example, applied only
to inter-state conflicts23 and protected individuals only to the extent they
were objects of the adversary. The law was reciprocity-based, and applied
exclusively to conflicts in which all states that were engaged in the conflict
were also parties to the Conventions.24 Thus, the Hague Conventions could
not apply as such during World War II, even as between states parties to
the Conventions, since some of the belligerents had not become parties to
those Conventions.25
The 1949 Geneva Conventions marked significant advances over the
Hague Conventions, but they were still primarily concerned with inter-state
armed conflict. Common Article 2 of the 1949 Geneva Conventions
provides that “the present Convention shall apply to all cases of . . . armed
conflict which may arise between two or more of the High Contracting
[state] Parties.” However, the adoption of the 1949 Conventions also
yielded the first treaty provision expressly regulating non-international
armed conflict. Common Article 3 of the Conventions applies to “armed
conflict[s] not of an international character occurring in the territory of one
of the High Contracting Parties.” It is the only substantive provision in the
Conventions that applies in non-international armed conflict, and protects
only against the most serious abuses.26
22.
23.
24.
25.
26.
Some degree of international regulation may have been entailed under the pre-U.N.
Charter law of neutrality. In particular, where insurgent groups reached a certain
critical mass, they could possibly achieve belligerent status, imposing a duty of
neutrality on other states. However, this regulation itself flowed from the principle of
non-intervention.
However, the ICTY has held that the basic rules of these Conventions have since
evolved through customary law to apply to non-international conflicts as well.
Prosecutor v. Tadic, Case No. IT-94-1, ICTY Appeal Decision, ¶ 127 (Oct. 2, 1995)
[hereinafter Tadic Appeal Decision].
See Hague Convention (IV) Respecting the Laws and Customs of War on Land, art.
2, Oct. 18, 1907, 36 Stat. 2277, T.S. 539 [hereinafter Hague Convention IV] (“The
provisions contained in the Regulations referred to in Article 1, as well as in the
present Convention, do not apply except between Contracting Powers, and then only
if all the belligerents are parties to the Convention.”).
However, certain norms of the Hague law had by that time acquired the status of
customary law, and were applicable as such.
Under Common Article 3:
the following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to” persons “taking no active part
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While neither the Hague Conventions nor the Geneva Conventions
define the phrase “armed conflict,” definitions for both international and
non-international armed conflict have been set forth in international
jurisprudence. According to the jurisprudence of one international criminal
court, an armed conflict exists “whenever there is a resort to armed force
between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a
State.”27
A peculiar feature of the law of non-international armed conflict is its
application to non-state groups. As noted above, the traditional subject of
international law is the state. Common Article 3, however, binds both states
and non-state groups engaged in non-international conflicts.
Another significant feature of the law of non-international armed
conflict is the way in which it is framed. Common Article 3 does not speak
in terms of authorization, but only in terms of prohibition. As only one state
is typically involved28 in a non-international armed conflict, there can be no
reciprocal exchange of rights and duties among states. For example, while
the law of inter-state armed conflict effectively authorizes29 the conflicting
states to detain enemy combatants for the duration of hostilities, no
in the hostilities,” including those placed hors de combat:
(a) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and
degrading treatment;
(d) The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135.
27.
Tadic Appeal Decision, supra note 23, at ¶ 70.
28.
Of course more than one state could be battling the same non-state group. However,
this would not alter the nature of the conflict as long as the states were not in conflict
with each other.
29.
The use of the term “authorizes” should not be interpreted as implying that the state
cannot be held responsible for the detention. If the state’s recourse to the use of force
violated the jus ad bellum, it will be responsible for ensuing harm, including the
detention and killing of enemy combatants.
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analogous provision exists in the law of non-international armed conflict.
As the central case of non-international armed conflict is an internal
conflict, such authorization is unnecessary. Of course the state is free to
detain insurgents operating within its territory.
Related to this is the absence of the combatants’ privilege. In
international armed conflict, privileged combatants30 are permitted to
engage in acts which would otherwise be regarded as criminal, e.g. murder,
so long as those acts do not violate the law of armed conflict. They are thus
immune from prosecution for such acts. In addition, upon capture, they are
entitled to prisoner-of-war treatment. This privilege exists only in
international armed conflict.31
Thus, non-state combatants in a non-international armed conflict may
be prosecuted for all hostile acts, including violations of ordinary domestic
law, irrespective of whether they have violated any norms of international
law. In addition, they cannot be entitled to prisoner-of-war status, since
such status does not exist in the law of non-international armed conflict.
It is for these reasons that Common Article 3 specifically prohibits
“[t]he passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples”; it being understood that the state has the power to
prosecute the insurgents for all of their hostile acts. In the context of an
internal armed conflict, the state would indisputably have jurisdiction to
prosecute.
However, this equation is altered if such a conflict spills out onto the
territory of another state.
B. Common Article 3 in a Transnational Setting
The text of Common Article 3 provides little guidance as to whether it
was intended to apply outside of a state’s territory. It could be argued that
use of the phrase “not of an international character,” instead of internal,
30.
31.
The term enemy combatant simply means that the person is a combatant who is
fighting on behalf of the enemy. It does not denote privileged status or lack thereof.
The legally meaningful distinction is between privileged and unprivileged
(sometimes described as “lawful” and “unlawful”) combatants, the test for which is
set forth in Article 4 of the Third Geneva Convention.
While the International Criminal Tribunal for the former Yugoslavia has held that
much of the law of international armed conflict, including the basic rules of the
Hague Conventions, has evolved through customary law to apply to non-international
armed conflicts as well, it is unlikely that the combatant’s privilege would have
similarly evolved given the direct and substantial threat it would pose to state
sovereignty.
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was a conscious choice intended to ensure that all armed conflicts were
covered. Under that reading, non-international armed conflict would
encompass any armed conflict other than one that was international in the
sense of Common Article 2 (i.e. interstate). This position rests on the logic
of the Convention regime in the context of the international legal system. If
Common Article 3 would apply even in the context of a purely internal
conflict, then a fortiori it would apply to a conflict with a transnational
dimension, in which the principle of non-intervention would have less
force.
However, some have focused on the phrase “occurring in the territory
of one of the High Contracting Parties,” arguing that the plain meaning of
this language would limit the application of Common Article 3 to internal
conflicts. This reading comports with the notion that the provisions of
Common Article 3 were drafted against the backdrop of state authority and
jurisdiction over the battlefield, an authority and jurisdiction which would
not exist (or would exist to a much lesser extent) outside of the state’s
territory.
The International Court of Justice seems to have adopted the former
reading of Common Article 3. In Nicaragua v. United States of America,
after noting that Common Article 3 applies in conflicts not of an
international character, the ICJ stated that there was:
no doubt that, in the event of international armed conflicts,
these rules also constitute a minimum yardstick, in addition to
the more elaborate rules which are also to apply to
international conflicts; and they are rules which, in the
Court’s opinion, reflect what the Court in 1949 called
“elementary considerations of humanity.”32
This position has also been adopted by the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia. In its 1995
Tadic Appeal Decision, the Chamber noted that the ICJ had “confirmed
that these rules reflect ‘elementary considerations of humanity’ applicable
under customary international law to any armed conflict, whether it is of an
internal or international character.”33 It therefore held that, “at least with
respect to the minimum rules in Common Article 3, the character of the
32.
33.
Nicaragua v. United States, supra note 19 at 25 (citing Corfu Channel, Merits, 1949
I.C.J. 4, 22 (April 9)). Although the Court ultimately refrained from characterizing
the conflict in which the United States was engaged in Nicaragua, it held that
Common Article 3 would apply in any event as a minimum yardstick for all armed
conflicts. It thus clearly took the position that Common Article 3 applies beyond a
state’s territory.
Tadic Appeal Decision, supra note 23,¶ 102 (Aug. 10, 1995).
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conflict is irrelevant.”34 These authorities seem to have interpreted the
phrase “conflict not of an international character” as being residual,
covering any armed conflict. They thus have held that the standards of
Common Article 3 have evolved into a baseline of legal protection
applicable in all armed conflicts.
This question arose recently in a case before the U.S. Supreme Court.
In Hamdan v. Rumsfeld,35 the Supreme Court held that Common Article 3
regulated U.S. conduct in relation to an alleged Al-Qaeda affiliate captured
in the context of a transnational armed conflict. Hamdan was captured in
Afghanistan in November 2001 in the course of the armed conflict between
the United States and the then de facto government of Afghanistan. The
law of armed conflict clearly applies to that conflict, and the U.S.
government accepts this position.36 In the Supreme Court, the U.S.
government had taken the position that there were in fact two simultaneous
conflicts occurring in Afghanistan. One conflict was between the United
States and the Taliban (fighting on behalf of Afghanistan, a state party to
the Geneva Conventions), and the other was a separate conflict with AlQaeda. It regarded the former as an international armed conflict to which
the Geneva Conventions were applicable. However, it asserted that the
Conventions, including Common Article 3, could not be applied to the
conflict with Al-Qaeda. The United States took the position that Common
Article 3 applies only to internal armed conflicts.37 Because the conflict
34.
35.
36.
37.
Id., at ¶ 102.
Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
The United States’ position seems to be somewhat broader. In a letter dated 31
January 2006, addressed to the Office of the High Commissioner for Human Rights,
the Permanent Representative of the United States of America to the United Nations
and Other International Organizations in Geneva wrote, “The United States has made
clear its position that it is engaged in a continuing armed conflict against Al Qaida,
that the law of war applies to the conduct of that war and related detention operations
. . . .” Indeed, the United States justifies its continued detention of the Guantanamo
detainees by reference to the law of armed conflict. In replying to inquiries by UN
and related human rights bodies about the legal basis for detaining the individuals at
Guantanamo, the United States has consistently asserted that “[t]he law of war allows
the United States—and any other countries engaged in combat—to hold enemy
combatants without charges or access to counsel for the duration of hostilities.”
Response of the United States of America dated October 21, 2005 to Inquiry of the
UNCHR Special Rapporteurs dated August 8, 2005 Pertaining to Detainees at
Guantanamo Bay, 45 ILM 769, 770 (2006); see also Second Periodic Report of the
United States to the Committee Against Torture, Annex 1 (May 6, 2005), available at
http://www.state.gov/documents/organization/62175.pdf.
It should be noted however that there has been within the U.S. military a long
standing policy giving a very broad read to Common Article 3, holding it applicable
in a wide range of military operations.
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with Al-Qaeda was transnational in nature, it was neither interstate nor
internal.38 Essentially, the United States posited a gap in the application of
the Conventions—that there were some armed conflicts to which no part of
the Conventions could apply. This position was endorsed by the majority in
the U.S. Court of Appeals for the DC Circuit in its July 2005 judgment in
the same case.39
The Supreme Court had a range of options before it. If it viewed the
situation in Afghanistan as one single international armed conflict, the
entire regime of the 1949 Conventions would be applicable. It would then
have had to deal separately with the question of Hamdan’s individual status
in order to determine which protections he would receive under the
Conventions. If it viewed it as a single non-international armed conflict,
e.g., by reasoning that the United States intervened in an ongoing noninternational armed conflict with the consent of the de jure government, or
if it took the view that there was a separate conflict with Al-Qaeda, it
would have to determine whether Common Article 3 applies to such
conflicts.
Ultimately, the Court chose not to take a position on whether there
were two separate conflicts, and refrained from characterizing the nature of
the conflict(s). It adopted the position that “there is at least one provision of
the Geneva Conventions that applies here even if the relevant conflict is not
one between signatories”—Common Article 3.40 The Court reasoned that
the “term ‘conflict not of an international character’ is used here in
contradistinction to a conflict between nations,” essentially adopting the
residual view of Common Article 3. It found that this provision:
affords some minimal protection, falling short of full
protection under the Conventions, to individuals associated
with neither a signatory nor even a nonsignatory [state] who
are involved in a conflict ‘in the territory of’ a signatory. The
latter kind of conflict is distinguishable from the conflict
described in Common Article 2 chiefly because it does not
38.
39.
40.
The United States also took the position that the Geneva Conventions, as legally
binding agreements between states, could not apply to the conflict with Al-Qaeda
because the latter was not a party to the Conventions, reflecting its view of the
inapplicability of the Conventions to transnational armed conflicts with non-state
groups.
Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
It reserved judgment on whether other provisions of the Conventions were applicable.
By taking this position, the Court essentially also adopted the position taken by the
International Court of Justice that Common Article 3 is a “minimum yardstick” for all
armed conflicts, international or non-international. See Nicaragua v. United States,
supra note 19, at 114.
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involve a clash between nations (whether signatories or not).
In context, then, the phrase ‘not of an international character’
bears its literal meaning. 41
Despite its strenuous objections in the Hamdan case, the U.S.
Government has since accepted the applicability of Common Article 3 to
transnational armed conflicts with non-state entities. In light of the Hamdan
judgment, the Office of the U.S. Secretary of Defense, in a memorandum
dated July 7, 2006, requested Defense Department leadership to ensure that
all Department personnel adhere to the standards of Common Article 3, and
to “promptly review all relevant directives, regulations, policies, practices,
and procedures” to ensure that they comply with these standards. The
memorandum noted that “[t]he Supreme Court has determined that
Common Article 3 to the Geneva Conventions of 1949 applies as a matter
of law to the conflict with Al Qaeda.”42
C. The Evolution of Humanitarian Law
One of the most significant international legal developments of the
20th century was the universal recognition that the protection of human
dignity is a proper concern of international law. While this development is
seen most clearly in the great corpus of human rights law created since the
conclusion of the Second World War, parallel developments may be
discerned in the evolution of the law of armed conflict as well. One
indication of this evolution is the fact that this body of law has come to be
41.
42.
Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2757 (2006). It is unclear whether the Court
found Common Article 3 applicable as such, or whether it found that the rules of
Common Article 3 would be applicable in any event. For example, by envisioning
Common Article 2 and Common Article 3 as drafted in contradistinction to each
other, it seems to imply that they are mutually exclusive. Thus, it would seem that the
Court would have to find either that the conflict was non-international and that
therefore only Common Article 3 would apply, or that it was international and the
rest of the convention would apply, to the exclusion of Common Article 3. But
ultimately, the Court seems to find that Common Article 3 would apply irrespective
of the nature of the armed conflict. This could be understood as finding that the rules
of Common Article 3, as fundamental minimum standards, are in fact provided for in
other terms, and supplemented with much greater protections, elsewhere in the
Conventions.
Memorandum from the office of the U.S. Secretary of Defense, Application of
Common Article 3 of Geneva Conventions to the Treatment of Detainees in the
Department of Defense (July 7, 2006). It should be noted that although the holding of
the Supreme Court in Hamdan was limited to the facts of that particular case (i.e. an
individual detained in the course of the U.S. invasion of Afghanistan), the
Memorandum indicates a broader reading of the Court’s holding—that Common
Article 3 applies to the conflict with Al Qaeda.
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known as humanitarian law.
As noted above, the Hague Conventions were drafted rigidly along
the lines of the inter-state system. The language of those Conventions was
language of prohibition and obligation, as opposed to rights-based
language. For example, rather than providing POWs with a “right” to
humane treatment, the Fourth Hague Convention requires that POWs be
“humanely treated.”43 In the event of breach, the only remedy provided for
in that Convention is inter-state compensation.44
By 1949, humanitarian law began to embrace the language of rights.
This approach is exemplified in Article 8 of the Fourth Geneva
Convention, which provides that “[p]rotected persons may in no
circumstances renounce in part or in entirety the rights secured to them by
the present Convention.” The Geneva Conventions also prohibit reprisals
against protected persons, emphasizing a further deviation from the
classical reciprocity-based system. Nonetheless, the Conventions retained
some of the baggage of the Westphalian system. The bulk of the
protections of the Fourth Convention were afforded only to the nationals of
the enemy State, preserving a degree of reciprocity.45 By 1977, however,
the drafters of Protocol I had recognized that human dignity demanded that
all victims of conflict be provided with certain basic protections
irrespective of nationality. Article 75 of Protocol I essentially encapsulates
human rights law, providing basic rights to individuals even vis-à-vis their
own government. Article 75 represents the complete abandonment of the
nationality test, and the shedding of reciprocity at least with regard to
protecting the fundamental rights of human beings.
While many of the above-mentioned provisions would not by their
terms apply in a non-international armed conflict, they demonstrate an
overall trend in humanitarian law toward recognition of the good of
protecting individuals as such. Indeed, this recognition has led to an everincreasing pool of humanitarian norms that have been deemed by
international courts to have evolved through custom such that they now
apply to non-international conflicts.
The more focused the law becomes on the protection of individual
human beings, the less justified formal distinctions become in ascertaining
eligibility for this protection.
43.
44.
45.
Hague Convention IV, supra note 24, Annex, art. 4.
Id., art. 3.
See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
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D. Implications of the Convergence of the Law of International and
Non-international Armed Conflict
As noted above, there has been an increasing degree of convergence
between the law of international armed conflict and the law of noninternational armed conflict. A result of this convergence has been that
individuals involved in a non-international armed conflict can now benefit
from many of the protections once available only in the context of interstate conflicts. For example, the Rome Statute criminalizes in the context of
non-international armed conflict violations of many of the basic rules
enshrined in the Hague Conventions, including, inter alia, prohibitions on
the denial of quarter, pillage, the employment of certain types of weapons,
and the killing or wounding treacherously of a combatant adversary.46
At the same time, some have relied on this convergence to extend to
non-international armed conflicts not only the prohibitions of the law of
international armed conflict, but also its authorizations. As noted above,
from the initiation of the “War on Terror,” the U.S. government has
consistently asserted that the “law of war” authorizes the detention of
enemy combatants.
The traditional understanding of the law of non-international armed
conflict was that it contained only prohibitions. While the law of
international armed conflict affords to privileged combatants a privilege to
kill and detain enemy combatants, this would not apply in a noninternational armed conflict. Certainly states would not want to extend to
insurgent groups a privilege to engage in hostilities or to detain or kill
members of the state’s forces. The states themselves, having sovereignty
over their territory, would require no international authorization to use
force in the context of internal conflicts.47
However, where a state acts on the territory of another state, the
acting state, in general, cannot invoke its own sovereign territorial
authority. In the context of an international armed conflict, the combatants’
privilege serves a function in the place of this authority. The privilege
would apply reciprocally, and neither state could prosecute lawful acts of
war committed by privileged enemy combatants, jurisdictional competence
otherwise notwithstanding. In a non-international armed conflict, no such
privilege has been traditionally understood to exist. Thus, hostile acts
committed by a state’s forces against members of a non-state group on the
46.
47.
Rome Statute of International Criminal Court art. 8(2)(e), July 17, 1998, U.N. Doc.
A/CONF.183/9 (2002), available at http://www.un.org/law/icc/statute/romefra.htm
(last visited Nov. 30, 2008).
Certain rules of international law would, of course, operate to restrain that use of
force.
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territory of another state would not be privileged or otherwise authorized.48
Nonetheless, the present U.S. Administration appears to take the
position that the law of armed conflict provides authority to detain and kill
members of Al Qaeda even on the territory of third states.49 To bolster its
position, it could point to the increasing penetration of the law of
international armed conflict into the realm of non-international armed
conflict.
However, there is a key difference with respect to those norms that
have been found by international criminal courts to have evolved into the
law applicable in non-international conflicts. To date, only prohibitions
have been found to have so evolved. These duties to refrain from certain
conduct impose negative obligations upon states. It is quite another thing to
assert the existence of a right to act on the territory of another state in the
absence of that state’s consent.
In any event, notwithstanding continuing controversy over its content,
there seems to be a general consensus supporting the proposition that the
law of non-international armed conflict applies extraterritorially. As noted
above, demonstrating the applicability of humanitarian law outside of a
state’s territory is facilitated by the fact that the bulk of the law of armed
conflict was designed to apply in an interstate context, presupposing that
states would be acting on each other’s territory. That some of these rules
are now deemed to apply even in an internal setting does not lessen the
presumption that they will still apply extraterritorially, at least insofar as
they consist of prohibitions and do not purport to impose obligations on
third states.
Thus, the law of non-international armed conflict, while not
conferring any legal authority to kill or detain enemy combatants, imposes
legal restraints on the parties to the conflict even in a transnational setting.
48.
49.
Some have argued that in the post-9/11 world, the right of self-defense could
authorize incursions into a state’s territory for the purpose of defending against an
armed attack by a non-state group operating within that other state’s territory. Even if
this argument could be accepted as a basis for absolving the state of responsibility for
an otherwise internationally wrongful act, this issue would be legally distinct from
the question of whether the conduct of the state’s forces was privileged as against
application of the territorial state’s domestic law. While the territorial state could of
course grant such a privilege, it is highly unlikely that this would be required by
international law.
Such authority could of course be conferred by the territorial state, subject to certain
limitations. See, e.g., Responsibility of States for internationally wrongful acts, art.
26, G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (Dec. 12, 2001). However, the Bush
administration seems to claim that it would have such authority even in the absence
of the territorial state’s consent.
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CONCLUSION
The ultimate irony in this instance is that the United States has gotten
the exact opposite of what it was seeking through its invocation of the law
of war. Instead of conferring enhanced authority, the United States’
insistence on the armed conflict model has led to increased legal
restraints.50
There may well be a need for the creation of new legal authority in
the context of the “War on Terror,” but this authority cannot be created
unilaterally. Furthermore, where such authority is created, it must always
be accompanied by regulation of that authority. To create a power without
any regulation of how that power is used is anathema to the rule of law.
This applies a fortiori in the international context.
While subjects of law tend to advocate expansive interpretations of
their rights and narrow interpretations of their duties, this is moderated in
the domestic context by the presence of authoritative interpreters that can
keep this tendency in check. In so doing, they promote the stable
development of the law and prevent it from spiraling into a chaotic system
in which the rules can quickly lose their meaning.
The stability of the international system relies to a significant extent
on self-restraint. It is for this reason that fundamental importance attaches
to the principle that obligations must be interpreted in good faith. In the
present context, a domestic mechanism has assisted in the implementation
of this international legal principle. The U.S. Supreme Court has provided a
check on the scope of interpretation that the U.S. Executive had afforded to
itself.
This process continues to unfold. Recent legislation attempts to
embed the Executive’s erroneous interpretations of international law into
the domestic legal system. The Military Commissions Act of 2006 purports
to afford the President the exclusive power to interpret the Geneva
Conventions as domestic law. As this article goes to press, that legislation
is being challenged in a case51 pending before the Supreme Court. It
remains to be seen whether the Court will continue to serve its vital
function.
50.
51.
There is yet another consequence that the U.S. Executive is unlikely to welcome. Its
rejection of the application of the law of international armed conflict means that its
enemies cannot be prosecuted for violations of that body of law. Even if acts are
expressly criminalized under domestic law, as through the Military Commissions Act,
the principle of nullem crimen sine lege may bar prosecutions to the extent such acts
were not recognized as criminal at the time they occurred. See Cerone, supra note 2.
Boumediene v. Bush, 127 S.Ct. 3078 (2007).