Controlling The Use of Force - A Role For Human Rights

CONTROLLING THE USE OF FORCE: A ROLE FOR HUMAN RIGHTS NORMS IN CONTEMPORARY ARMED CONFLICT
By Kenneth Watkin *
According to protesters, U.S. soldiers fired on them without provocation, killing seventeen people and wounding more than seventy. According to the U.S. military, the soldiers returned precision fire on gunmen in the crowd who were shooting at them.
Human Rights Watch The twenty-first century has witnessed significant challenges to the traditional view that international humanitarian law exclusively regulates the use of force in armed conflict. The death and destruction caused on September 11, 2001, reflect the increasingly complex nature of modern conflict. Groups that rely on the benefits of globalization and technological advances to conduct operations across international borders are threatening the maintenance of international order. Their tools of violence range from conventional weapons of war to more modern weapons of mass destruction1 and potentially asymmetric cyber attacks.2 At the same time, the proliferation of internal armed conflicts points to similarly complex security challenges within nation-states. These conflicts have not always attracted the same amount of publicity as transnational terrorism, which does not, however, make their threat to international and human security any less real. In these situations, death and human suffering largely emanate from readily available, but relatively low-tech means, such as antipersonnel mines, the ubiquitous AK47 rifle,3 and even machetes and transistor radios.4 Increasingly, the use of force during armed conflict is being assessed through the perspective of human rights law, as well as under international humanitarian law. This article explores the interface between these two normative regimes and its impact on efforts to control the use of deadly force. The analysis will outline three ways that these two systems of law interact. First, it demonstrates that the unique threat posed by nonstate actors, combined with the lack
* Colonel and Deputy Judge Advocate General/Operations, Canadian Forces. This article is based on a paper first presented at the New Wars, New Laws? Conference held at Cornell Law School in June 2003 while the author was a visiting fellow in the Human Rights Program, Harvard Law School. The opinions expressed are those of the author and do not necessarily reflect the views of the government of Canada, the Canadian Forces, or the Office of the Judge Advocate General. 1 Weapons of mass destruction are identified as a chemical, biological, radiological, or nuclear weapon, or highyield explosives in the NATIONAL STRATEGY FOR COMBATING TERRORISM 9 (Feb. 2003), at <http://www.whitehouse.gov/ news/releases/2003/02/counter_terrorism/counter_terrorism_strategy.pdf>. 2 NATIONAL STRATEGY FOR HOMELAND SECURITY 9 ( July 2002), at <http://www.whitehouse.gov/homeland/ book/sect2-1.pdf> (indicating that [t]errorist groups are already exploiting new information technology and the Internet to plan attacks, raise funds, spread propaganda, collect information, and communicate securely). Asymmetric warfare has been defined as fighting for different ends, or in different ways, or with different means from those of ones opponent. Mark Clodfelter, Airpower Versus Asymmetric Enemies: A Framework for Evaluating Effectiveness, 16 AIR & SPACE POWER J. 37, 37 (2002). 3 Mass-produced weapons such as the AK47 and similar small arms stand out as late-twentieth-century symbols of warfare by the people. As John Keegan notes, the industrialization of modern society militarized the populations of both rich and poor states. JOHN KEEGAN, A HISTORY OF WARFARE 57 (Vintage Books 1994) (1993). 4 Not all killing results from modern weapons. The genocide of eight hundred thousand Rwandans was carried out largely by local populations, who were spurred on by their radio station RTLM, spewing racist propaganda, exciting Hutus to kill all Tutsis as well as elements of UNAMIR. Romeo A. Dallaire, The End of Innocence: Rwanda 1994, in HARD CHOICES: MORAL DILEMMAS IN HUMANITARIAN INTERVENTION 71, 78 ( Jonathan Moore ed., 1998).
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of a consensus on the legal categorization of conflict, creates conditions in which the criminal law enforcement and armed conflict paradigms overlap. This overlap, in turn, directly affects the applicability of human rights law, which is most commonly associated with law enforcement, and humanitarian law, which applies during armed conflict. As a result, force may be used in situations where it cannot easily be delineated which of the two normative frameworks governs. Second, by highlighting areas of commonality and difference, the two normative frameworks will be seen to share common values and a close connection to the development of the nationstate. Each regime has developed along a unique path shaped by the different roles a state performs in maintaining external and internal order. For example, the nature and scale of violence in interstate conflict has had a distinct impact on how force is controlled under international humanitarian law. In contrast, the internal use of force is normally dealt with under a human rights paradigm. Notwithstanding these differences, both normative regimes may be brought into play simultaneously because of the nature of the violence that may be encountered during armed conflict. Such interface may occur during internal armed conflict and states of emergency, belligerent occupation, and global terrorism. Third, this article examines the unique attributes that the human rights accountability framework brings to the effort to control the use of force. That highly developed system of accountability has much to offer in terms of limiting the impact of some forms of violence, especially when compared to the still evolving accountability framework under international humanitarian law. The pressure to apply human rights principles arises in particular during situations more closely associated with governance than direct combat with an enemy force. However, the successful recourse to human rights law in armed conflict is likely to require an adjustment in the application of those accountability principles. Principles developed for domestic law enforcement may not be readily applicable to the different and often more complex circumstances under which force is applied during armed conflict. It is the unique interface between these two normative frameworks that challenges the traditional idea that the use of force in armed conflict is governed exclusively by international humanitarian law. Ultimately, this article argues that the issue should not be the exclusive application of either framework but, rather, that appropriate principles should be applied to ensure that there are no gaps in humanitarian protection. I. A COMPLEX LEGAL ENVIRONMENT Categorization of Conflict in the Context of Terrorism The complexity of the regulation of armed conflict in the twenty-first century is not always evident in the relevant terminology. For example, the normative frameworks for regulating life and death are often discussed in terms of two distinct spheres of activity, armed conflict and peace. While international humanitarian law applies to international and noninternational armed conflict and international human rights principles primarily affect governance in peacetime, especially law enforcement, the relationship between the two is much more complex than this simple division of responsibilities implies. For example, human rights law continues to be applicable during armed conflict, although, as the International Court of Justice decided in the Nuclear Weapons Advisory Opinion,5 whether there has been an arbitrary deprivation of the right to life is determined by international humanitarian law acting as lex specialis.6
5 6
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226 ( July 8). Id., para. 25.
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CONTROLLING THE USE OF FORCE: A ROLE FOR HUMAN RIGHTS NORMS
The events of September 11 have focused attention on the potential overlap between international conflict, noninternational armed conflict, and law enforcement. Further, the disturbing level of violence that nonstate actors can inflict has caused significant uncertainty about the suitability of situating criminal acts related to terrorism within the purview of law enforcement. The following discussion highlights the present lack of consensus on the categorization of contemporary nonstate violence and thus sets the scene for analyzing the areas of overlap in the normative frameworks that may govern the use of force. The point of departure for the application of international humanitarian law is whether an armed conflict exists. The traditional view of armed conflict is perhaps most clearly represented in the narrow de jure concept of war as a conflict between states.7 Since World War II, the term international armed conflict has been used to describe those interstate struggles.8 Its use reflects the increasingly limited scope that has been assigned to the de jure concept of war, although the term has recently reentered the lexicon of conflict in a de facto and often rhetorical sense.9 The immediate postWorld War II recognition of a broader concept of armed conflict is also reflected in the term armed conflict not of an international character found in common Article 3 of the 1949 Geneva Conventions.10 The difficulty in assessing whether attacks by nonstate actors with global reach constitute an international armed conflict can be seen in the wide variety of opinions expressed by legal scholars on the invocation of the right to self-defense in response to the attacks of September 11. The legal interpretations of the basis for the conflict with Al Qaeda often rely on multiple interrelated rationales that add to the complexity of the analysis.11 Some authors consider the right of self-defense to be based on the connection between Al Qaeda and the Taliban as the de facto rulers of Afghanistan.12 Some view Al Qaedas actions as constituting significant attacks in their own right.13 Others look to the involvement of the Security Council to
7 See Antonio Cassese, Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law, 12 EUR. J. INTL L. 993 (2001); Joan Fitzpatrick, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 AJIL 345, 348 (2002). 8 As Leslie Green notes, the classic position is that international law is concerned only with relations between states. As a result, conflict between states was what that law regulated. L. C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 5455 (2d ed. 2000). This view is reflected in Prosecutor v. Tadi , Appeals Judgment, No. IT941A, para. 84 ( July 15, 1999) (holding that [i]t is indisputable that an armed conflict is international if it takes place between two or more States). Decisions of the International Criminal Tribunal for the Former Yugoslavia are available online at <http://www.un.org/icty>. 9 The use of the term armed conflict resulted from the recognition that the application of international humanitarian law should not be dependent upon formalities associated with war. INTERNATIONAL COMMITTEE OF THE RED CROSS, GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR: COMMENTARY, Art. 2, at 17 ( Jean Pictet gen. ed., 1958), available at <http://www.icrc.org> [hereinafter ICRC COMMENTARY]. The more limited use of the term war was linked to efforts in the first half of the twentieth century to eliminate war as a means to resolve disputes between states. Hence the de jure concept of war being of limited use in the discourse for regulating in bello action. However, characterising a conflict as war has considerable factual significance. Christopher Greenwood, The Concept of War in Modern International Law, 36 INTL & COMP. L.Q. 283, 294 (1987). 10 Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 3, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III]. 11 For example, Sean Murphy gives six reasons for concluding that the attacks of September 11 were an armed attack: the scale of the incidents was akin to that of a military attack; the United States immediately perceived the incidents as akin to a military attack; the U.S. interpretation was largely accepted by other nations; the incidents could properly be viewed as both a criminal act and an armed attack; there was prior state practice supporting the view that terrorist bombings could constitute an armed attack; and the fact that the incidents were not undertaken directly by a foreign government cannot be viewed as disqualifying them from constituting an armed attack. Sean D. Murphy, Terrorism and the Concept of Armed Attack in Article 51 of the U.N. Charter, 43 HARV. INTL L.J. 41, 4750 (2002). 12 RICHARD FALK, THE GREAT TERROR WAR 101 (2003); Davis Brown, Use of Force Against Terrorism After September 11th: State Responsibility, Self-Defense and Other Responses, 11 CARDOZO J. INTL & COMP. L. 1, 6 (2003); Cassese, supra note 7, at 999; Christopher Greenwood, International Law and the War Against Terrorism, 78 INTL AFF. 301, 314 (2002); see also Fitzpatrick, supra note 7, at 349 (indicating that [t]he attacks of September 11, if attributable to a foreign state linked to Al Qaeda, clearly could give rise to an international armed conflict between the United States and the sponsor state). 13 Murphy, supra note 11, at 47. Under the heading Afghanistan as Self-Defense, Richard Falk also refers to Al Qaeda as having inflicted more harm and trauma than any state (Pearl Harbor is viewed as remotely comparable),
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provide legitimacy,14 while still others deem terrorist groups with global reach as generally amenable to being targeted with a military response.15 It has also been suggested that the operations in Afghanistan constituted an intervention in an internal armed conflict16 or the internationalization of a civil war.17 Importantly, the response to terrorism has not been viewed solely in the context of an armed conflict. Some have found such threats to be more amenable to a law enforcement response18 and urged that, rather than viewing the attacks of September 11th as acts of war, they should have been treated as international crimes for which the perpetrators should be apprehended, tried and, if convicted, punished.19 The threshold question of whether an act of terrorism can be understood as engagement in international armed conflict inevitably involves consideration of the numerous terms relating to the use of force in the United Nations Charter: the use or threat of force, breach of the peace, act of aggression, and armed attack. However, one finds a lack of consensus on how these terms interact in determining whether an armed conflict exists.20 Similarly, determining the point at which terrorist attacks constitute an armed attack is complicated by the inability of international legal scholars to agree on the interpretation of the International Court of Justices 1986 Judgment in Military and Paramilitary Activities in and Against Nicaragua.21 The view of the Court in the Nicaragua case that the use of force could be divided into two categories, most grave (those constituting armed attacks) and less grave, and its finding of a distinction between armed attacks and mere frontier incidents, appear to have split writers into two camps.22 One group sees the Courts view as narrow and unduly formalistic, so
and then concludes that [i]n such circumstances stretching the international law doctrine of self-defense to include a non-state actor seemed reasonable and necessary. FALK, supra note 12, at 102. Cherif Bassiouni observes that international humanitarian law is binding on both state and insurgent or revolutionary forces and then states: Al Qaedas attacks against the United States on September 11 and earlier fall within this paradigm: they are subject to the strictures of international humanitarian law, regardless of the legitimacy of their perpetrators cause. Subsequently, he goes on to discuss the role of Afghanistan as a base of operation. M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Assessment, 43 HARV. INTL L.J. 83, 100 (2002); see also Brown, supra note 12, at 2429. 14 Cassese, supra note 7, at 1000; see also Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH. U. GLOBAL STUD. L. REV. 135 (2004). 15 Brown, supra note 12, at 2425 (stating: If a non-state actor such as a terrorist organization commits aggression against a state, and the aggression is of sufficient scale and effect to amount to an armed attack, then the terrorist organization itselfnotwithstanding its non-combatant statushas committed an armed attack against the state.) (footnote omitted)). 16 Fitzpatrick, supra note 7, at 350. 17 According to Adam Roberts, the war in Afghanistan could best be classified under the informal category of internationalised civil war, in which the rules pertaining to both international and civil wars may be applicable in different aspects and phases of the conflict. Adam Roberts, Counter-Terrorism, Armed Force and the Laws of War, SURVIVAL, Spring 2002, at 7, 16. 18 Anthony Dworkin, Revising the Law of War to Account for Terrorism: The Case Against Updating the Geneva Conventions, on the Ground That Changes Are Likely Only to Damage Human Rights, FINDLAWS WRIT: COMMENTARY (Feb. 4, 2003), at <http://writ.news.findlaw.com/commentary/20030204_dworkin.html>. Since international law does not recognize war with groups like Al Qaeda, Dworkin suggests that one solution, which he admits is not likely to gain U.S. support, is to limit the notion of armed conflict to interstate and civil wars, and use law enforcement means to pursue Al Qaeda as a group of international terrorists. 19 Sadat, supra note 14, at 136. 20 Rein Mullerson, Self-Defense in the Contemporary World, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 13, 16 (Lori Fisler Damrosch & David J. Scheffer eds., 1991). Greenwood notes that the categories of threat to the peace and armed attack are not mutually exclusive in arguing that the characterization of the September 11 attacks as threats to the peace and international crimes does not mean that they cannot also amount to an armed attack. Greenwood, supra note 12, at 307. But see Michael Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EUR. J. INTL L. 227, 229 (2003) (arguing that armed attack in the sense of Article 51 is an actual armed attack, . . . not one which is only threatened). 21 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 ( June 27) [hereinafter Nicaragua]. 22 CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 141 (2000); see also Nicaragua, 1986 ICJ REP. at 101, para. 191 (referring to most grave and less grave forms of the use of force).
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restrictive that ultimately it will encourage aggression of a low-key kind.23 The second group appears to see the principle of collective self-defense, combined with a lower threshold of armed attack, as a threat to world peace that could lead to a risk of the internationalization of civil conflicts and the expansion of inter-state conflicts.24 This lack of agreement is not helpful, particularly since the assessment of the existence of an armed conflict is increasingly being made outside the context of a state-on-state conflict. A very low threshold of what constitutes an armed attack25 has the potential to blur the lines between armed conflict and criminal law enforcement. At the other end of the spectrum, too high a threshold may leave a state at risk, especially if there is a credible threat involving the use of weapons of mass destruction by a nonstate actor. Attacks by nonstate actors challenge the view of a neat division of armed conflict into the two spheres of international and noninternational.26 Identification of the boundaries of noninternational armed conflict has never been easy. While international humanitarian law is generally interpreted to have limited impact in situations that do not reach a level above internal disturbances and tensions, such as riots, isolated and sporadic acts of violence,27 the dividing line between the operation of that law and human rights law is not always clear or absolute. In many respects, global terrorism seems to straddle the law enforcement and armed conflict paradigms. Engagement in criminal activity by terrorist groups, warlords, and other nonstate actors to finance their operations adds significantly to the perception of an overlap between law enforcement and the conduct of hostilities.28 At the same time, efforts to position the use of force on the scale of the events of September 11, which included an attack on the Pentagon, as an exclusively criminal matter not constituting an armed attack appear inconsistent with the very strong international response based on the exercise of the right of self-defense.29
23 GRAY, supra note 22, at 141 (relying on W. Michael Reisman, Allocating Competences to Use Coercion in the PostCold War World: Practices, Conditions, and Prospects, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER, supra note 20, at 26). 24 Id. at 14142. 25 YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 174 (3d ed. 2001) (describing a de minimis non curat lex standard of armed attack as a use of force causing human casualties and/or serious destruction of property). 26 Greenwood, supra note 12, at 314, states that [f]ighting between the United States and Al-Qaida . . . appears to fit neither of these moulds. According to Fitzpatrick, supra note 7, at 348, The September 11 attacks did not launch an internal armed conflict in the United States as understood in international humanitarian law. Derek Jinks, September 11 and the Laws of War, 28 YALE J. INTL L. 1 (2003), suggests that the attacks by Al Qaeda on 9/11 were not an international armed conflict (because there is no conflict between states), a classic internal armed conflict (because there was no control or attempt to seek to control territory), or a so-called war of national liberation. Instead, he views the conflict as an armed conflict not of an international character falling under common Article 3 of the 1949 Geneva Conventions. This approach appears somewhat counterintuitive given the ability of such terrorist groups to direct significant levels of violence across international borders and even continents. However, it does reflect the challenge contemporary conflict is presenting to traditional interpretations of international humanitarian law. 27 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 1, 1125 UNTS 609 [hereinafter Protocol II]; see also Rome Statute of the International Criminal Court, July 17, 1998, Art. 8(2)(f), UN Doc. A/CONF.183/9* (1998), reprinted in 37 ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN.177.2000.TREATIES5 [hereinafter ICC Statute]. 28 Bassiouni has noted that [g]lobalization has . . . allowed terrorist groups to network with one another, permitting terrorist groups to develop strategic alliances with other groups engaged in transnational criminality in order to develop synergetic connections and to maximize respective capabilities and effectiveness. Bassiouni, supra note 13, at 88; see also JOHN K. COOLEY, UNHOLY WARS: AFGHANISTAN, AMERICA AND INTERNATIONAL TERRORISM 127 (2d ed. 2000) (observing that all sides in the Afghan wars prior to September 11 used drugs as an actual weapon and as a source of finance, [which] gave this monstrous and lucrative international business a decisive push forward). 29 Greenwood, supra note 12, at 31011 (containing the text of the United States and United Kingdom letters to the UN Security Council outlining their reliance on the right of self-defense enshrined in Article 51 of the UN Charter); Murphy, supra note 11, at 4551. International recognition of the exercise of the right to self-defense is reflected in Security Council Resolutions 1368 (Sept. 12, 2001), 40 ILM 1277 (2001) and 1373 (Sept. 28, 2001), 40 ILM at 1278, the invocation of Article 5 of the Washington Treaty by the North Atlantic Council, NATO Press Release (2001) 124, Statement by the North Atlantic Council (Sept. 12, 2001), 40 ILM at 1267, and the Australian/ United States invocation of Article IV of the ANZUS Treaty, Media Release, Application of ANZUS Treaty to Terrorist Attacks on the United States (Sept. 14, 2001), at <http://www.pm.gov.au/news/01_news.html>.
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Apparently, the challenge of international terrorism does not need to be dealt with exclusively under either criminal law or the law of armed conflict. Indeed, Sean Murphy has suggested that the September 11 incidents be seen in exactly this way.30 The criminal nature of the members of Al Qaeda is reflected in their being equated with pirates.31 However, the categorization of groups like Al Qaeda as international criminals32 does not change the nature or scope of the threat they pose to their targets. Concern has been expressed, though, that shifting counterterrorism action from a crime control to an armed conflict model would displace human rights norms as the primary legal constraint on counter-terrorist tactics.33 But such a shift might also be viewed as a change in emphasis rather than a complete displacement of the law enforcement option.34 In this respect, the determination in the immediate aftermath of September 11 that the attacks triggered the right of self-defense brought with it the application of international humanitarian law.35 Some commentators, however, have not been as concerned about the threat posed by Al Qaeda and the Taliban as about how far the net of the broader war on terrorism may be cast.36 Nonstate Actors A separate, but closely linked, issue is the nonstate status of some of the participants in armed conflict. The term nonstate can be misleading, as it largely relates to private participants37 in a conflict, as opposed to those who may be irregular forces belonging to38 a state. Categorizing these private actors is made more difficult by the increasing use of the terrorist label. A definition of terrorism has yet to be agreed upon,39 and proposed versions sometimes show a preference for limiting it to the criminal sphere40 or nonstate activity.41
30 Murphy, supra note 11, at 49; see also Cassese, supra note 7, at 1000 (stating that [i]n addition to using military force the US should also aim at bringing the persons accused of the crimes to justice); Greenwood, supra note 12, at 305. 31 Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AJIL 328, 329 (2002). 32 See OPPENHEIMS INTERNATIONAL LAW 746 (Robert Jennings & Arthur Watts eds., 9th ed. 1996) (describing piracy as an international crime, the pirate is considered the enemy of every state). 33 Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism and Human Rights, 14 EUR. J. INTL L. 241, 246 (2003). 34 UN Security Council Resolution 1373, supra note 29, outlines numerous steps related to law enforcement for countering terrorist acts. Similarly, the U.S. NATIONAL STRATEGY FOR COMBATING TERRORISM, supra note 1, at 15, which describes the terrorist threat in terms of a war, outlines a multifaceted approach to that threat, including the use of diplomatic, economic, information, law enforcement, military, financial, intelligence, and other instruments of power. See also Michael Ignatieff, Human Rights, the Laws of War and Terrorism, 69 SOC. RES. 1137, 1145 (2002) (suggesting that the type of law to be applied should depend on whether the action against Al Qaeda is primarily a military or a civilian police operation). 35 See supra note 29. 36 Falk expressed concern over the empowerment of other states to intensify violence against their own opponents; the provision of support to repressive regimes allied in the war on terror; the potential for weakening international humanitarian law; the bypassing of the United Nations; and the potential for abuse of the just war doctrine. FALK, supra note 12, at 11228; see also Fitzpatrick, supra note 7, at 347; Fitzpatrick, supra note 33, at 24445. But see Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EUR. J. INTL L. 209, 225 (2003) (stating that [l]ooking at the war on terrorism thus far, the concept of pre-emption is being applied in a responsible manner, though some statements made by the current Administration might have suggested a broader application). 37 Grotius defines war as the condition of those contending by force, noting that the root of the word bellum is derived from the old word duellem. The de facto concept of war was not limited to public war between two sovereigns. He notes that private war is more ancient than public war and has, incontestably, the same nature as public war; wherefore both should be designated by one and the same term. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES 33 (Francis W. Kelsey trans., Carnegie ed. 1925) (1646). 38 Geneva Convention No. III, supra note 10, Art. 4(2). 39 Cassese, supra note 7, at 994. A common thread in many definitions has been the connection with killing for politically motivated purposes. Bassiouni, supra note 13, at 84 (defining terrorism as a strategy of violence designed to instill terror in a segment of society in order to achieve a power-outcome, propagandize a cause, or inflict harm for vengeful political purposes); see also GRANT WARDLAW, POLITICAL TERRORISM 810 (1982) (distinguishing between acts of terror, which may be carried out by criminals, mentally unstable persons, etc., and terrorism, which is defined by its high symbolic content). 40 Philip Heymann points out that the definition of terrorism by academics often has a far more moral or criminal flavor than state definitions suggesting that terrorists are hostile forces acting for political purposes. In his
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However, it has been acknowledged that illegitimate acts of terror can occur during armed conflict, or otherwise be carried out by and on behalf of states.42 Although the terrorist label can express moral condemnation and focus attention on the nature of the threat posed by the criminal act,43 the vagueness of the term makes it an imperfect vehicle for definitively determining if the alleged perpetrators are involved in an armed conflict. Persons with no or little connection to the armed forces of a state have regularly participated in hostilities within the context of international armed conflict.44 The classic case outlining the grounds for self-defense under international law, the Caroline dispute, has become the common historical example of a cross-border conflict between state and nonstate actors.45 Nevertheless, sorting out the status of nonstate participants in armed conflict has challenged international humanitarian law since the earliest attempts at codification. The provisions of Additional Protocol I to the 1949 Geneva Conventions, although not accepted by certain significant states,46 marked an important milestone by providing the qualifying armed forces of nonstate national liberation movements with combatant status.47 Still, there remains a diverse range of state and nonstate participants in international armed conflict who can be termed unprivileged belligerents or unlawful combatants.48 These nonstate actors, who do not qualify for combatant status, often participate in hostilities on a level and at a degree of intensity equal to those of the regular armed forces and legitimate irregular forces. The status of participants in noninternational armed conflict is more easily discerned, thanks to the general reluctance of nation-states to accord any legitimate status to insurgent
view, violence against civilians in the context of a guerrilla war or during a war between states is not considered terrorism in many contexts simply because it is not subject to the same remedies (which are designed for times of peace). PHILIP B. HEYMANN, TERRORISM AND AMERICA 5 (1998). 41 The U.S. government recently defined terrorism as premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents (emphasis added). NATIONAL STRATEGY FOR COMBATING TERRORISM, supra note 1, at 1. 42 States often use a definition of terrorism that is limited to nonstate actors. However, terror in its broadest sense has been and remains a part of warfare. States engaged in armed conflict may legitimately attempt to instill fear in an opponent, but [a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 51(2), 1125 UNTS 3 [hereinafter Protocol I]. States can commit illegitimate acts of terror. See FALK, supra note 12, at 109; CHARLES TOWNSHEND, TERRORISM: A VERY SHORT INTRODUCTION 68 (2002); WARDLAW, supra note 39, at 9. 43 Terrorism ultimately refers to acts that are already illegal under domestic and international law, including the law regulating armed conflict. TOWNSHEND, supra note 42, at 5. 44 While forming only a small part of his discussion of people in arms, Clausewitz provides insight into how war was changing in Europe at the beginning of the nineteenth century, including insurgent operations with all the attributes of guerrilla warfare. CARL VON CLAUSEWITZ, ON WAR 479 (Michael Howard & Peter Paret trans. & eds., 1976). In the 1863 Lieber Code, armed individuals or groups participating in conflict without authority are classified as highway robbers or pirates, armed prowlers, or war-rebels. U.S. War Dept, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Arts. 82, 84, 85 (Apr. 24, 1863), reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Ji i Toman eds., 3d rev. ed. 1988) [hereinafter Lieber Code]. 45 See Greenwood, supra note 12, at 308; see also Sofaer, supra note 36, at 209 (general discussion of the Caroline dispute). 46 As of November 9, 2003, a total of 191 states were parties to the 1949 Geneva Conventions; 161 countries were parties to Protocol I; and 156 were parties to Protocol II. The 30 countries that are not parties to Protocol I include India, Indonesia, Iran, Iraq, Israel, Japan, Pakistan, and the United States. 47 As Green notes, [T]o some extent certain non-international conflicts have come under the aegis of international law since 1977 with the adoption of Article 1(4) of Protocol I and Protocol II additional to the 1949 Geneva Conventions . . . . GREEN, supra note 8, at 5556. On national liberation movements, see note 72 infra. 48 International humanitarian law has always struggled with how to deal with and categorize persons who do not qualify for combatant status but participate directly in hostilities. They have variously been termed unlawful belligerents, unlawful combatants, unprivileged belligerents, or simply enemy combatants. Spies and saboteurs operating behind enemy lines out of uniform are considered to be unprivileged belligerents and therefore not entitled to combatant or prisoner-of-war status. Richard R. Baxter, So-called Unprivileged Belligerency: Spies, Guerrillas, and Saboteurs, 1951 BRIT.Y.B. INTL L. 323, 328 (defining unprivileged belligerents as persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949).
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groups.49 Thus, a state can be engaged in an armed conflict with an insurgent or revolutionary group, irrespective of that groups legitimacy, and vice versa.50 Controlling Deadly Force The nature of the violence that can occur during, or contemporaneously with, an armed conflict also plays a role in the determination of the applicable regime. The use of force in an armed conflict might be considered, in a traditional sense, as aggression, self-defense, humanitarian intervention, or the exercise of self-determination. However, as is evident from the obligation to maintain security in occupied territory, force may also be applied in exercising what might normally be seen as a policing function, such as maintaining public order, quelling riots and disturbances, and countering criminal acts. Notwithstanding the broad context in which the use of force might be considered, this analysis focuses on the application of deadly force, that is, force capable of causing death or serious injury. Although this focus may appear narrow, the means for applying deadly force in contemporary armed conflict are exceptionally broad. Thus, an attack on the computer network controlling a water supply represents the latest ingenious means of applying force that can have a deadly effect.51 Computer technology has been combined with information gathering and precision weapons to target opposing leaders in perhaps one of the most obvious and emotional manifestations of the changing circumstances in which deadly force is being used. Recent examples can be found across the broad spectrum of conflict and include the attempt to kill President Saddam Hussein at the start of the conflict in Iraq,52 the targeting of Palestinian resistance leaders in the Israeli-occupied territories,53 and the killing of suspected Qaeda terrorists in Yemen.54 Since military forces might be asked to participate in a wide range of operations, other, less traditional applications of force, such as less-than-lethal weapons55 and riot control agents, may enter into the equation. Despite their intended less-than-lethal effect, such options often retain the potential for death or serious injury56 and must therefore be closely controlled as well.
49 Gerald L. Neuman, Humanitarian Law and Counterterrorist Force, 14 EUR. J. INTL L. 283, 297 (2003); see also Waldemar A. Solf, The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice, 33 AM. U. L. REV. 53, 5859 (1983). As noted in LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 60 (2002), Once rebels are captured, or otherwise rendered unable to continue fighting, . . . they become hors de combat and are entitled to the same level of humane treatment as civilians. Their legal status nevertheless remains unchanged, exposing them to the full force of the States criminal law. 50 Bassiouni, supra note 13, at 99. 51 Dinstein notes that if such an assault would cause fatalities (resulting e.g. from the shutdown of computers controlling waterworks and dams, with a consequent flooding of inhabited areas), it would qualify as armed attack. DINSTEIN, supra note 25, at 16667; see also GREG RATTRAY, STRATEGIC WARFARE IN CYBERSPACE 20 (2001) (indicating that such a microforce, if applied to shutting down a nuclear plant, could be equated to a weapon of mass destruction). 52 Rajiv Chandrasekaran & Thomas E. Ricks, U.S. Opens War with Strikes on Baghdad Aimed at Hussein, WASH. POST, Mar. 3, 2003, at A1. 53 For a discussion of the Israeli approach to targeting, see Molly Moore, Israels Lethal Weapon of Choice, WASH. POST, June 29, 2003, at A1. 54 A missile strike from a Predator drone aircraft in November 2002 killed six suspected members of Al Qaeda in Yemen. David Johnston & David E. Sanger, Fatal Strike in Yemen Was Based on Rules Set out by Bush, N.Y. TIMES, Nov. 6, 2002, at A16 (stating that [t]he missile strike represented a tougher phase of the campaign against terror and moved the Bush administration away from the law enforcement-based tactics of arrests and detentions of Qaeda suspects that it had employed outside Afghanistan in the months since the fighting there ended). 55 In the United States, research into less-than-lethal weapons for law enforcement, corrections, and military personnel has included work on blunt-trauma projectile weapons, pepper spray for barricade scenarios, technology for disorienting suspects, and electric-shock weapons. Hearing of the Subcommittee on Aviation of the [House] Committee on Transportation and Infrastructure (May 2, 2002) (statement of Sarah V. Hart, director of the National Institute of Justice), available in LEXIS, Legis Library, Fednew File. 56 For example, in October 2002, Russian Special Forces used Fentanyl, a synthetic anesthetic, in an attempt to incapacitate a Chechen rebel group that had seized a theater in Moscow, causing the death of a large number of hostages. The U.S. National Institute of Justice has researched the use of Fentanyl drugs as nonlethal weapons, but in the form of a dart and not a gas. John Bowman, Russian Knock-out Gas, CBC News Online, Oct. 28, 2002, at <http:// www.cbc.ca/news/features/knockoutgas.html>.
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Even though the approach to terrorism as solely a law enforcement responsibility is being challenged by the categorization of terrorist acts as armed conflict, the change brought about by the complexity of contemporary conflict is not moving entirely in one direction. The approach to the control of force in armed conflict as the exclusive domain of international humanitarian law is facing an intensified effort to have it encompass human rights norms and their associated accountability structure. This analysis now turns to the impact of those human rights norms on regulating the use of force in contemporary conflict and their potential for regulating these complex security situations in the future. II. THE RIGHT TO LIFE: COMMON GROUND For some, the discussion of any killing is problematic. The right to life is a deeply held principle that is protected in times of both peace and war. A common starting point of both human rights and humanitarian law is respect for human values and the dignity of the human person. The two normative regimes share a common core of fundamental standards which are applicable at all times, in all circumstances and to all parties, and from which no derogation is permitted.57 It has been noted that [w]hen life is deprived, it is impossible to enjoy any fundamental freedom.58 This fundamental status makes it tempting to consider the right to life in unqualified terms. However, the absolute nature of the right is challenged by the need to maintain order in society, both domestically and internationally, which may occasionally lead to the use of deadly force. The interpretation of the right to life as absolute is often linked to pacifism,59 but, as the early Christian church discovered, pacifism can conflict with the obligations of governance. As a result, just war theory, which authorized warfare as a Christian activity, was developed as that religion became linked with the secular power of the Empire.60 Since the state has the right and the duty to guarantee the security of its citizens, it may be required to use deadly force, although its power is not unlimited and its actions are subject to law and morality.61 Members of the armed forces and civilians enjoy the same fundamental right to life, but that right is limited by the different societal demands according to which human rights and international humanitarian law operate. The normative framework of international humanitarian law differs in many respects from that of international human rights law. One fundamental difference is that humanitarian law requires the balancing of humanity62 with military necessity.
57 Prosecutor v. Delali , Appeals Judgment, No. IT9621A, para. 149 (Feb. 20, 2001) ( elebi i case); see also Theodor Meron, The Humanization of Humanitarian Law, 94 AJIL 239, 26667 (2000). 58 Yoram Dinstein, Terrorism as an International Crime, 1987 ISR. Y.B. HUM. RTS. 55, 63; see also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, doc. 5, rev.1 corr., para. 81 (Oct. 22, 2002), available at <http://www.cidh.oas.org/Terrorism/Eng/part.c.htm> [hereinafter OAS Report on Terrorism]. 59 Ignatieff, supra note 34, at 1144. The depth of the proscription against the taking of life among early Christians is reflected in the view that there was no lack of those who did not indeed disapprove of public war, but who thought that in the case of an individual self-defence was forbidden. GROTIUS, supra note 37, at 93. 60 IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 5 (1963); see also COLM MCKEOGH, INNOCENT CIVILIANS: THE MORALITY OF KILLING IN WAR 1922 (2002) (indicating that Augustines work on just war theory was partly motivated in reaction to the leveling of blame at the pacifist church for the downfall of the Roman Empire). 61 OAS Report on Terrorism, supra note 58, para. 107 (quoting Neira Alegra Case, 20 Inter-Am. Ct. H.R. (ser. A) para. 75 (1995)). 62 Robin Coupland points out that there are alternative definitions of humanity, one being the human race; mankind; human beings collectively; and another, the character or quality of being humane; behaviour or disposition towards others such as befits a human being. Robin Coupland, Humanity: What Is It and How Does It Influence International Law? INTL REV. RED CROSS, Dec. 2001, at 969, 972 (quoting 7 OXFORD ENGLISH DICTIONARY 476 (2d ed. 1989)). Coupland makes a strong argument for viewing humanity in an interrelated fashion with physical security and health so as to reinforce its place in the legal dialogue of international humanitarian law. However, Green, supra note 8, at 56, notes that the purpose of the law of armed conflict is to a great extent directed to the preservation of the principles of humanitarianism. It is in the context of principle and behavior that humanity has traditionally been balanced against military necessity.
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A primary goal of military necessity is the submission of the enemy at the earliest possible moment with the least possible expenditure of personnel and resources. It justifies the application of force not prohibited by international law. Because armed conflict largely consists of the application of deadly force, this balancing with humanity forms a major and highly visible part of international humanitarian law. This aspect of international humanitarian law sometimes leaves the impression that, in contrast, human rights law is absolute in nature. However, that normative structure must also account for the taking of life so as to maintain social order. Although legally sanctioned killing is often considered in the context of the death penalty, the right to life is also limited by competing interests such as the right to self-defense, acting to defend others, the prevention of serious crimes involving a grave threat to life or serious injury, and the use of force to arrest or prevent the escape of persons presenting such threats.63 On the other hand, the use of deadly force is strictly limited by the requirement that a person not be arbitrarily deprived of life.64 Examples of such limitations are found in Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the right to life is not contravened where no more force than is absolutely necessary is used in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent escape of a person lawfully detained, or in action lawfully taken for the purpose of quelling a riot or insurrection.65 The Convention also makes an exception for deaths resulting from lawful acts of war.66 Despite the differences between international humanitarian law and human rights law, they exhibit a commonality of content that causes them to converge.67 Human rights norms reflected in the Universal Declaration of Human Rights and the other postUN Charter human rights documents have had a significant impact, producing a large measure of parallelism between norms, and a growing measure of convergence in their personal and territorial applicability.68 Further, while international humanitarian law has attained a relatively high level of codification and acceptance of customary law norms with respect to international armed conflict, it is less clearly defined with regard to internal conflicts.69 This feature inevitably invites close interaction between the two normative regimes, particularly when nonstate actors operate within an enemy state, in occupied territories, or with respect to internal armed conflicts. III. THE ROLE OF THE STATE Even though human rights law and the law governing armed conflict share respect for human values, the frameworks within which they traditionally operate are significantly different. Those
63 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Doc. A/CONF.144/28/Rev.1, at 112, para. 9 (1990), available at <http://193.194.138.190/html/menu3/b/h_comp43.htm> [hereinafter Basic Principles]. 64 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 6(1), 999 UNTS 171 (providing: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.). 65 European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, Art. 2, 213 UNTS 221. 66 Id., Art. 15(2). 67 Examples of the parallelism of content include the right to life; the prohibition of torture and cruel, inhuman, or degrading treatment or punishment; arbitrary arrest or detention; discrimination on grounds of race, sex, language, or religion; and due process of law. Meron, supra note 57, at 266. 68 Id. at 245; see also Dale Stephens, Human Rights and Armed ConflictThe Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, 4 YALE HUM. RTS. & DEV. L.J. 1, 3 (2001) (suggesting that the Advisory Opinion is a significant statement on the convergence of humanitarian principles between the law of armed conflict and international human rights law). 69 For example, common Article 3 of the four 1949 Geneva Conventions and Additional Protocol II are important in terms of providing humanitarian protection to victims of internal conflict, but they do not provide the level of detail or scope of protection afforded by the codified law governing international armed conflict.
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differences have been uniquely shaped by the role that nation-states have long performed in maintaining external and internal order. By exploring the unique nature of both interstate and intrastate conflicts, the application of human rights law in regulating armed conflict can be properly situated. Interstate Conflict The states monopolization of violence is one context in which to analyze international humanitarian law. The existence of a single or right authority to govern conflict is closely linked to the concepts of public and private war70 and the rise of organized society out of the feudal structure of the Middle Ages. A key element to establishing order was controlling the ability of private individuals to engage in hostilities. The ultimate authority to use force was concentrated in the hands of a sovereign. The exclusive role of the governing authority in suppressing private war and waging public war continued as control of society proceeded from the church to the sovereign and, finally, to the nation-state with the Treaty of Westphalia in 1648.71 A continuing effect of the right authority principle is that the state remains the primary legitimate authority for engaging in public wars. Control over what was once termed private war is similarly concentrated in the hands of the state. Following World War II, the acknowledgment of a right to self-determination eventually resulted in the inclusion of national liberation movements in Additional Protocol I72 as one of the authorities that might legitimately engage in public war. Even so, while interpretations as to which groups might qualify for this status vary, some legal scholars have noted that this provision operates as only a relatively minor change in the preexisting law.73 Analysis of the ability of national liberation movements to fulfill the statelike role provided for in Additional Protocol I has included questions about whether guerrilla forces can realistically be expected to meet all the requirements of the Protocol, such as compliance with the stringent rules governing the housing and treatment of prisoners of war. However, all participants in armed conflict remain obligated to comply with international humanitarian law.74 As a result, states remain primarily responsible for engaging in public war. The organization of the state, and in particular its claim to a monopoly of violence for the maintenance of external and internal order, has a direct impact on the normative regimes that govern its use of force. As Vattel indicated, war was carried on in the name of the sovereign, and individual members of the armed forces and those by whose agency the sovereign
War is referred to here in a factual sense. See supra note 9. BROWNLIE, supra note 60, at 313. 72 The term national liberation movements is used generically to describe peoples [who] are fighting against colonial domination and alien occupation and against racist rgimes in the exercise of their right of self-determination, as provided for in Protocol I, supra note 42, Art. 1(4). 73 George H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AJIL 1, 46 (1991); Hans-Peter Gasser, An Appeal for Ratification by the United States, 81 AJIL 912, 91617 (1987); see also Theodor Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 AJIL 678, 683 (1994). There is, however, no guarantee that the scope of the provision on national liberation movements engaged in selfdetermination will be so narrowly interpreted, although it has been noted that a broader interpretation can only occur if the practice of States in this regard undergoes considerable change. Christopher Greenwood, Terrorism and Humanitarian LawThe Debate over Additional Protocol I, 1989 ISR. Y.B. HUM. RTS. 187, 19495. 74 Hans-Peter Gasser, Acts of Terror, Terrorism and International Humanitarian Law, INTL REV. RED CROSS, Sept. 2002, at 547, 563 (stating: Any combatant who chooses to engage in guerrilla warfare remains bound to respect all rules on the conduct of military operations and the protection of civilians. There will be no excuse if he combines (legitimate) guerrilla warfare with a (criminal) terrorist campaign.); see also HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 5052 (International Law Studies No. 59, 1978); Frits Kalshoven, The Position of Guerrilla Fighters Under the Law of War, 11 MIL. L. & L. WAR REV. 55, 8182 (1972); W. Thomas Mallison & Sally V. Mallison, The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict, 9 CASE W. RES. J. INTL L. 39, 5863 (1977).
71 70
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makes war, are only instruments in his hands.75 Warfare is ultimately conducted as a group activity, which has become a defining principle of the modern concept of combatancy.76 In addition, the pooling of the considerable technological and human resources of the state has profoundly affected warfare. It has been suggested that modern means of death and destruction would never have been possible without the state, its ministry of defense, . . . and its regular, uniformed, bureaucratically managed armed forces.77 Assessing the extent to which international humanitarian law applies to internal conflicts has also centered on the issue of the right authority to engage in conflict. Whether movements seeking to liberate populations from the tyranny of governments can legally fulfill that role has been widely debated, but the power to wage public war and authorize its agents to use force is solidly entrenched in positive law terms in the state.78 Interstate belligerencies differ significantly from situations of internal conflict because of the lack of a single international governing authority. Clearly, the relationships between states are not governed exclusively by resorting to the use of force,79 but the absence of both multilateral and domestic enforcement regimes . . . has resulted in making interstate cooperation in penal matters cumbersome, lengthy, and, more often than not, ineffective.80 However, if alternative means of controlling terrorist violence are either ineffective or not available, the state may be driven to consider the use of military force to remove or neutralize a threat. In comparison to the power enjoyed by a state domestically, control over violent individuals or groups under the international legal regime must depend on less certain means. Although the UN Security Council arguably operates as a form of right authority, that body can become mired in political stalemates that hinder its ability to regulate the use of force.81 The decision to act collectively and individually in self-defense set out in Article 51 of the UN Charter is left to the involved states themselves, at least until the Security Council has taken measures necessary to maintain international peace and security. Finally, whatever advantage technology has provided to nonstate actors, nation-states remain the true engines of technological advancement. As a result, interstate conflict, as well as operations against nonstate actors, may bring destruction to areas previously thought safe from attack.82
75 EMMERICH DE VATTEL, THE LAW OF NATIONS, bk. III, ch. II, 6 ( Joseph Chitty ed., 1834) (Gaunt reprint 2001) (1758). Here Vattel was relying on Grotiuss view that the sovereign was the principal actor and the instruments were men who take up arms. See also MCKEOGH, supra note 60, at 109. 76 This theme was reflected in the writings of Jean-Jacques Rousseau where he explained that war was a relation between states rather than men. MCKEOGH, supra note 60, at 121. See also infra note 114 for a discussion of the group characteristics of combatancy. 77 MARTIN VAN CREVELD, THE RISE AND DECLINE OF THE STATE 249 (1999); see also WARD THOMAS, THE ETHICS OF DESTRUCTION 62 (2001) (discussing the link between the organization of the state and the maintenance of military forces). 78 For example, MICHAEL WALZER, JUST AND UNJUST WARS 18586 n.* (1977), suggests that war rights should attach to guerrilla forces on the basis of the degree of civilian support they have when the people look after the guerrillas. While this theory has some resonance with respect to the recognition of national liberation movements under Additional Protocol I, the state has remained the primary legitimate authority. See supra note 73. 79 International agreements, the acceptance by states of customary norms, the existence of the International Court of Justice, and the creation of international criminal tribunals and courts point to the availability of alternative mechanisms to avoid and resolve disputes. For example, international and regional cooperation by states in dealing with terrorism can be effected through treaties, the implementation of extradition, mutual legal assistance, information sharing, the freezing of financial assets, immigration controls, and the prosecution and punishment of the perpetrators. OAS Report on Terrorism, supra note 58, paras. 3335; Bassiouni, supra note 13, at 94. 80 Bassiouni, supra note 13, at 95. 81 It has been suggested that the Security Council lacks the cohesion, sovereignty, and effective chain of command for military forces necessary for the exercise of international statecraft. JAMES TURNER JOHNSON, MORALITY AND CONTEMPORARY WARFARE 6061 (1999). 82 The future holds the prospect of global targeting by remotely piloted hypersonic aircraft capable of hitting targets nine thousand miles away from the launching point. Maxim Kniazkov, U.S. Launches Effort to Develop Hypersonic Strike Capability, Agence-France Presse, July 2, 2003, available in LEXIS, News Library, Wires File.
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Internal Conflict In contrast, states deal with internal threats in an entirely different way. Internal control is both more invasive and, to a significant degree, more subtle than the control exercised in interstate relationships. It does not depend exclusively, or even primarily, on the direct application of force.83 Rather, emphasis has been placed on maintaining order through the application of the rule of law.84 The development of police and security forces is directly linked to the ascendancy of the nation-state. John Keegan observes that [t]he civilised societies in which we best like to live are governed by law, which means that they are policed, and policing is a form of coercion.85 The development of modern police forces is related to a confluence of factors, including the threat posed by standing armies if their efforts were turned to policing; the elevation of the right to property as an inalienable law of nature; the disarming of the upper classes; and the movement of populations to cities as a consequence of industrialization.86 The state has the ability to integrate itself into the lives of its citizens and control their activities, for example, by conducting electronic eavesdropping and surveillance where authorized. More important, the state normally maintains an effective human intelligence-gathering apparatus, operated by uniformed and nonuniformed police and domestic security agencies. The control of internal violence is most directly associated with law enforcement. The level of state control and intervention raises significant issues of privacy and the potential for abuse. The Reign of Terror launched by the generator of the leve en masse, the French National Assembly, introduced the term terror into the modern lexicon.87 It is no coincidence that efforts to control the power of the state and its impact on individual citizens spawned human rights norms. Human rights are generally concerned with the organization of State power vis--vis the individual and, as such, found their natural expression in domestic constitutional law.88 This focus on the individual in respect of power wielded by the state is fundamental to international human rights law. Within states the application of human rights norms reflects the challenges associated with maintaining order. Some human rights may be derogated from during emergencies to facilitate the maintenance of public order. While the exercise of such powers is controversial and by law strictly controlled, their existence demonstrates that internal threats to the security of the state can reach the level of interfering with governance.89 That derogations are not
83 As Christopher Morris argues, states reliance on force or sanctions is often exaggerated. States exert control by a variety of behaviors, including taxes, licensing, establishing standards for action, and exercising the right to adjudicate. Governing by the will of the people is another obvious multiplier of the states power to compel obedience. CHRISTOPHER W. MORRIS, AN ESSAY ON THE MODERN STATE 199204 (1998). Van Creveld, in referring to the role of the state in disciplining the people, indicates that its grip on society is the product not only of the development of specialized police forces and prison systems, but also of state-run educational systems and social legislation governing work and health. VAN CREVELD, supra note 77, at 20524. 84 IAN BROWNLIE, THE RULE OF LAW IN INTERNATIONAL AFFAIRS 213 (1998), identifies elements of the rule of law as: the powers of officials must be based on authority conferred by law; the law must conform to standards of substantial and procedural justice; the powers of the executive, the legislature, and the judicial function must be separated; the judiciary should not be subject to the control of the executive; and all legal persons are subject to the rules of law. See also Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 25758. 85 KEEGAN, supra note 3, at 386. 86 VAN CREVELD, supra note 77, at 20607. 87 TOWNSHEND, supra note 42, at 3637. 88 Robert Kolb, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 38 INTL REV. RED CROSS 409, 410 (1998). 89 For example, the International Covenant on Civil and Political Rights, supra note 64, Art. 4, the European Convention for Human Rights, supra note 65, Art. 15, and the American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 UNTS 123, all provide for the suspension of certain rights in times of crisis like wars and emergencies. On the use of derogations in respect of terrorist activity, see Sabine von Schorlemer, Human Rights: Substantive and Institutional Implications of the War Against Terrorism, 14 EUR. J. INTL L. 265, 27880 (2003); see also Hernn Montealegre, The Compatibility of a State Partys Derogation Under Human Rights Conventions with Its Obligations Under Protocol II and Common Article 3, 33 AM. U. L. REV. 41, 4145 (1983).
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permitted with regard to the right to life is a strong statement of the fundamental importance of that right. At the same time, anyone interpreting the right to life must be prepared to deal with situations, such as emergencies, where a significant degree of violence is being threatened or used. As important as civilian police forces are to the maintenance of internal order, the policing of a state is not always a function of civil police alone. Some states employ security forces of a paramilitary nature or legally empower military forces to perform internal policing duties.90 In some cases modern terrorism has stimulated the substantial militarization of police forces. Thus, different states may use either police or military forces to perform the same function (i.e., rescuing hostages). This blurring of lines between police and military forces further highlights the possible heights to which violence can rise in internal conflict. The Contemporary Challenge Until recently, commentators have been reluctant to acknowledge that an international armed conflict can occur between a state and a private actor.91 One impact of the September 11 attacks is that the destruction inflicted by the Qaeda terrorists has focused attention on a challenge that has more often faced states dealing with internal threats. Today a nonstate actor can attain such a level of organization and sophistication that it poses a threat comparable to that presented by military forces acting for or on behalf of a state. Such a group can field operational elements complete with a command structure and planning organization.92 The scale and effects of these attacks and their potential to be repeated or continued call for a response other than one focused exclusively on law enforcement. The phenomenon of failed or failing states, combined with the proliferation of technologically sophisticated means of inflicting violence, including weapons of mass destruction, makes the possibility that a private actor will operate outside the framework of state-based security particularly dangerous in the twenty-first century.93 IV. INTERNATIONAL HUMANITARIAN LAW AND THE USE OF FORCE To assess the degree to which international humanitarian law and human rights law are capable of converging, the different way these two normative regimes control the application
90 On the role of the third force in counterterrorism, see WARDLAW, supra note 39, at 97100. For example, in Canada the use of the armed forces in support of law enforcement is governed both by statutes, i.e., The Emergencies Act, R.S., ch. 22 (4th Supp. 1985), and the National Defence Act, R.S., ch. N5 (1985), and by the exercise of the Crown prerogative, i.e., Canadian Forces Armed Assistance Directions, P.C. 1993-624 (Mar. 30, 1993); see also Fitzpatrick, supra note 33, at 244. 91 Kalshoven, supra note 74, at 78, in discussing the status of the Israeli/PLO conflict, states:
[I]t is neither an internal conflict, nor do the States opposing Israel refuse to admit that they are Parties to the conflict; what they refuse to acknowledge (and even on occasion strongly deny) is that the Popular Front is affiliated to them. . . . On the other hand, one hesitates to characterize the operations of this and the other Arab guerrilla groups as a private war. Murphy, supra note 11, at 4647, notes that Israeli operations in Lebanon in 1982, the 1985 Israeli attack on PLO headquarters in Tunisia, and the 1986 U.S. attack on Libya in response to the Berlin dance club bombings have not met with widespread acceptance by the global community that the terrorist acts that precipitated those responses constituted an armed attack. 92 In 2002 Al Qaeda was divided into four committees: military, finance and business, fatwa and Islamic study, and media and publicity. The military committee conducted recruitment, training, procurement, transportation, and the launching of military operations, as well as the development of tactics and the acquisition and manufacture of special weapons. It included an extensive network of cells and agents and an internal security service. ROHAN GUNARATNA, INSIDE AL QAEDA 5758 (2002). 93 See MICHAEL IGNATIEFF, THE WARRIORS HONOR 159 (1997) (noting that a major contemporary problem is that some states are disintegrating and losing their monopoly on violence); see also VAN CREVELD, supra note 77, at 40308. However, there is continuing reliance on the responsibility of states for activities occurring within their borders. This approach is reflected in the U.S. NATIONAL STRATEGY FOR COMBATING TERRORISM, supra note 1, at 1112, which aims at reducing global terrorism to, first, a regional, and then, a local threat amenable to criminal law enforcement.
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of deadly force should first be considered. A unique feature of international humanitarian law is that combatants have the right to participate directly in hostilities.94 They receive immunity from prosecution, often termed as combat immunity, for killing carried out in accordance with the law.95 In addition, civilians are separated from combatants in accordance with the fundamental humanitarian law principle of distinction. Moreover, any use of force must be controlled to ensure that it is used intentionally only against valid military objectives. The controlled application of force is often referred to in modern military terminology as targeting. Great efforts have been made over the past quarter century to advance international humanitarian law in this regard. Notwithstanding the challenges that faced international humanitarian law during World War II, a commitment to the principle that there was still a place in war for humanity and forbearance was expressed at the close of the hostilities. This commitment resulted from the terrible loss of life caused by the wartime bombing campaigns,96 and it meant that civilians should be protected by international law from intentional targeting.97 In addition, the experiences of many of the dominant military powers following World War II, as both supporters and victims of modern warfare, prompted an international effort, ultimately sponsored by the International Committee of the Red Cross (ICRC), to consider how to limit the tremendous destruction inflicted by modern total war.98 This effort culminated in the creation in 1977 of the two Additional Protocols to the 1949 Geneva Conventions. Although thirty countries have not ratified Additional Protocol I, the targeting provisions are largely seen as reflective of customary international law.99 Protocol I reinforces in codified form the fundamental tenet of the obligation to distinguish between persons who take part in hostilities and those who do not. The principle of distinction is reflected not only in the definition of the two privileged classes, combatants100 and civilians,101 but also in the strict limitation of attacks to military objectives.102 Such objectives, however, may include both people and objects.103 Additional Protocol I was designed to limit the effects of targeting civilians because of their involvement in the war effort and civilians are considered separate from military objectives. But even within the category of civilians, their varying degrees of connection to a states warmaking capability can affect targeting decisions. For example, international humanitarian law has long recognized the intimate link between certain civilians and armed forces in the conduct of hostilities by providing for prisoner-of-war (POW) status for captured supply contractors, war correspondents, members of labor units, civilian crews of military and civilian
Protocol I, supra note 42, Art. 43. GROTIUS, supra note 37, at 654 (customary international law); Solf, supra note 49, at 58 n.31 (referring to Arce v. State, 83 Tex. Crim. 292, 202 S.W. 951 (1918)). 96 As James Spaight indicated in his postwar assessment of the law of air warfare:
95 94
It is necessary to state, or re-state, the fact that nothing that has happened in the second world war has shaken the legal objection to indiscriminate bombing. . . . It is at the lethal instruments, the lethal processes to be found behind the enemys frontier that a civilised air force strikes. That is what makes it a civilised air force. J. M. SPAIGHT, AIR POWER AND WAR RIGHTS 277 (3d ed. 1947). He goes on to state: Bombing for moral effect only remains unlawful. In that sense, attack on the civilian population is contrary to international law. Id. 97 Id. 98 For background, see R. R. Baxter, Humanitarian Law or Humanitarian Politics? The 1974 Diplomatic Conference on Humanitarian Law, 16 HARV. INTL L.J. 1, 49 (1975). 99 See, e.g., Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD 93, 10203 (Astrid J. M. Delissen & Gerard J. Tanja eds., 1991) (discussing U.S. recognition of the customary law status of some of the basic principles for the protection of civilians, including definition of military objectives and the principle of proportionality). 100 Protocol I, supra note 42, Arts. 43, 44. 101 Id., Art. 50. 102 Id., Art. 52. 103 Id., Arts. 52(2), 57. For example, Article 57(2) states that everything feasible must be done to verify that the objectives to be attacked are neither civilians nor civilian objects.
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aircraft, and the crews of the merchant marine.104 The close connection between these civilians and military operations, and the often consensual nature of their involvement in the form of contracts, make it difficult to argue that targeting decisions will always be significantly influenced by their presence in the vicinity of the military objective. Civilians such as industrial workers have often prompted moral questions concerning their degree of contribution to the war effort.105 Additional Protocol I specifically protects them from intentional attack unless and for such time as they take a direct part in hostilities.106 The targeting of military objectives raises the issue of double effect, or what in contemporary language is more generally called the principle of proportionality.107 According to this principle, civilians who are protected and immune from intentional direct attack may still be injured or killed if the military objective is determined to be sufficiently important. Much of the discussion of targeting under international humanitarian law has traditionally concentrated on the proportionality test and potential collateral damage to civilians. The current increased scrutiny of the issue of specifically targeting individuals has resulted in questions as to the kind of action that constitutes assassination108 and, if legal, whether it can be considered an effective means of conducting operations.109 The outcome of that debate does not alter the fact that persons taking a direct part in hostilities are subject to being lawfully targeted by the opposing force. Under both Additional Protocols, the direct involvement of civilians in hostilities does not affect their legal status, but it does mean that they will lose the protection of that status and could be targeted.110 Consequently, the principle of distinction is perhaps more accurately described as distinguishing between combatants, legal or otherwise, and those civilians who do not take a direct part in hostilities.
104 Geneva Convention No. III, supra note 10, Arts. 4(4), (5); see also Lieber Code, supra note 44, Art. 50; Project of an International Declaration Concerning the Laws and Customs of War (Brussels Declaration), Aug. 27, 1874, Art. 34, 65 BRIT. FOREIGN & ST. PAPERS 1005 (187374), reprinted in THE LAWS OF ARMED CONFLICTS, supra note 44, at 27; Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Art. 13, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Regulations]. 105 WALZER, supra note 78, at 14546. 106 Protocol I, supra note 42, Art. 51(3). 107 The doctrine of double effect had its genesis in the early Christian church. It is based on the argument that an act that has an evil consequence can be performed if the act is good, or at least indifferent; the direct effect is morally acceptable; the intention of the actor is good; and the good effect is sufficiently good to compensate for the evil effect. JOHNSON, supra note 81, at 13134; WALZER, supra note 78, at 153. The proportionality principle is reflected in Article 51 of Protocol I, in which the actual harm prohibited is an indiscriminate attack when it may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, . . . which would be excessive in relation to the concrete and direct military advantage anticipated. 108 Discussion of assassination from a legal perspective is complicated by the different interpretations of the term for peacetime and armed conflict, respectively. In peacetime assassination is normally associated with the illicit killing of government officials, while in armed conflict the killing is linked to treachery regardless of the status of the victim. See Michael N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 YALE J. INTL L. 609, 633 n.120 (1992) (stating: The peacetime prohibition serves to protect individuals involved in international affairs. . . . The war prohibition focuses on the method used to kill, not on the legitimacy of the target.); see also W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, ARMY LAW., Dec. 1989, at 4. Under this interpretation, therefore, the intentional killing of a civilian not taking a direct part in hostilities without any act of treachery, while illegal, would not constitute assassination. 109 A long-standing debate about the effectiveness of killing enemy leaders ranges from whether it will have any effect to whether it will possibly prolong the conflict. See BRUCE BERKOWITZ, THE NEW FACE OF WAR 12729 (2003); ALBERICO GENTILI, DE IURE BELLI LIBRI TRES 167 ( John C. Rolfe trans., Carnegie ed. 1933) (1612). Support for assassination is often based on the argument that striking at those directly responsible for the conflict avoids the death of innocents, including members of the military. Id. at 167. On assassination generally, see THOMAS, supra note 77, at 4785. The lawful targeting of leaders can include heads of state in uniform or even a civilian commander in chief. Parks, supra note 108, at 6 n.4. But see Yoram Dinstein, Legitimate Military Objectives Under the Current Jus in Bello, 78 INTL L. STUD. 139, 158 (2002) (indicating that a civilian member of the political leadership does not become a military objective by himself and cannot be targeted away from such objective). In addition, targeting decisions should not depend on the constitutional arrangements of a particular country. In that respect, it is not uncommon for civilian politicians to become involved in directing military operations or selecting targets. See Michael Short, Operation Allied Force from the Perspective of the NATO Air Commander, 78 INTL L. STUD. 19, 20, 25 (2002). In such situations those politicians leave themselves open to being considered as valid targets. 110 Protocol I, supra note 42, Art. 51(3); Protocol II, supra note 27, Art. 13.
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One approach to the temporal limitation found in the phrase for such time as (Art. 53(1) of Protocol I) has been to suggest that targeting civilian participants should be limited to times when they are firing weapons or otherwise posing an immediate threat. When not so engaged, these civilians would not be attacked.111 While designed to maximize the protection of uninvolved civilians, this interpretation might erode the humanitarian shield extended to civilians under Additional Protocol I because groups could take advantage of it by planning operations when not bearing arms or overtly conducting operations. Concern has long been expressed over the idea of such a revolving door of protection.112 Unfortunately, there is limited judicial guidance on this issue, as the case law has primarily dealt with the killing of persons who were hors de combat.113 The argument that civilians are protected unless engaged in overtly aggressive acts like carrying weapons may be particularly difficult to maintain where armed groups are technically accorded civilian status by virtue of not being considered lawful combatants.114 To the extent that civilians fulfill the same function as combatants, either in the armed forces or as part of the organization of an illegitimate nonstate actor, they are logically subject to targeting under the same provisions of international humanitarian law. The foregoing discussion demonstrates that the principles regarding targeting in armed conflict are directly affected by the nature of interstate conflict and the group role played by the participants. In contrast, the human-rights-based normative framework focuses on the protection of individuals115 and is predisposed to question any use of deadly force. The following review examines the manner in which human rights law regulates the use of such force. V. HUMAN RIGHTS AND THE CONTROL OF EXTRALEGAL KILLING The human rights framework emphasizes the use of review processes associated with the rule of law.116 Its goal is strict control not only of force intended to kill, but also of any unintended
111 See AMNESTY INTERNATIONAL, ISRAEL AND THE OCCUPIED TERRITORIES: STATE ASSASSINATIONS AND OTHER UNLAWFUL KILLINGS 29 (AI Index No. MDE 15/005/2001, Feb. 2001); see also MCKEOGH, supra note 60, at 140 (interpreting
Protocol I to mean that irregular combatants could move from the category of combatant to the category of civilian (and back again) . . . . permitting the same persons to be both combatant and non-combatant in the course of a day). 112 See W. Hays Parks, Air War and the Law of War, 31 A.F. L. REV. 1, 11820 (1990). 113 See Case 11.137, Juan Carlos Abella v. Argentina, 1997 Inter-Am. Y.B. on H.R. 602 (Commission report). While dealing with the issue of direct or active participation in hostilities, the Abella case centered to a large extent on allegations of summary executions and abuse that occurred after the participants were captured. See also Prosecutor v. Tadi , Opinion and Judgment, No. IT941T, para. 616 (May 7, 1997), excerpted in 36 ILM 908 (1997) (determining that the protection provided by common Article 3 should be extended to persons who were captured or detained because [w]hatever their involvement in hostilities prior to that time, . . . [they] cannot be said to have been taking an active part in the hostilities). 114 The loss of combatant privilege can result from not acting on behalf of a state or national liberation movement, or failure to comply with the group characteristics of combatancy set out in Geneva Convention No. III, supra note 10, Art. 4(2) and Protocol I, supra note 42, Art. 43. Further, failure to meet the requirements of the second sentence of Article 44(3) of Protocol I can result in the loss of POW status, although Article 44(4) provides that such persons are to be given protections equivalent in all respects to those accorded to prisoners of war. Six criteria are relevant to the determination of combatant status. It has been suggested that the first threebeing organized, being under responsible command, and belonging to a party to the conflictapply to the group and not to individuals. The remaining criteriadisplaying a distinctive sign, carrying weapons openly, and complying with the customs and law of warare both group and individual in nature. G. I. A. D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 1971 BRIT.Y.B. INTL L. 173, 19697. However, scholars have found it difficult to agree on which of the conditions are collective and which individual. According to one interpretation of Additional Protocol I, status cannot be denied on a group basis for a failure by an armed force to enforce compliance with international humanitarian law, see, e.g., MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 23839 (1982), but this interpretation does not appear to reflect the majority opinion. 115 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160, para. 146 (1995); see also McKerr v. United Kingdom, 34 Eur. H.R. Rep. 553, 598, para. 108 (2001). See also the following three cases which differ only in relation to the facts and amount of damages awarded: Hugh Jordan v. United Kingdom, App. No. 24746/94 (2001); Kelly and Others v. United Kingdom, App. No. 30054/96 (2001); Shanaghan v. United Kingdom, App. No. 37715/97 (2001). All these cases are available online at <http://www.echr.coe.int>. 116 See BROWNLIE, supra note 84, at 65 (noting that the concepts of human rights and the institutions aimed at the monitoring and enforcement of human rights constitute what is, to a certain extent, a discrete public order system).
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outcome involving deprivation of life.117 Limiting the use of force to situations of absolute necessity indicates that a stricter and more compelling test of necessity must be employed [than] that normally applicable when determining whether State action is necessary in a democratic society. 118 The different context in which force is normally applied within a state is also reflected in the emphasis placed under the human rights framework on seizing an individual. For example, the U.S. Supreme Court stated in Tennessee v. Garner 119 that [t]he intrusiveness of a seizure by means of deadly force is unmatched. . . . The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.120 A particular concern of supervisory bodies is that state agents will adopt or exercise a shootto-kill policy.121 All the same, the ability to seize an individual and to bring that person to justice requires a law enforcement focus with a high level of physical control over the situation, as well as a well-developed judicial process to deal with the offender. These factors are not normally encountered in external conflicts, even when nonstate actors such as terrorists are involved. These strict human-rights-based standards of accountability find expression in the international principles on the use of force. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials require the adoption of rules and regulations on the use of force and firearms;122 encourage the development and deployment of nonlethal incapacitating weapons;123 prescribe clear warning on the use of firearms unless inappropriate;124 and state that firearms are to be used in a manner likely to decrease the risk of unnecessary harm.125 Firearms may be employed intentionally only when strictly unavoidable in order to protect life.126 Force, including firearms, may be used only if other means remain ineffective or without any promise of achieving the intended result.127 Circumstances such as political instability or any other public emergency cannot be invoked to justify departing from the
The term extralegal killing is used below synonymously with extrajudicial killing. Extrajudicial appears to have its genesis in human rights documents such as the International Covenant on Civil and Political Rights, Article 6, which, in describing the right to life, specifically qualifies it by prohibiting arbitrary deprivation of life and permitting the death penalty in certain respects. Much of the discourse of human rights emphasizes the controversial issue of judicially sanctioned killing. The term extralegal more directly reflects the scope of the authority to use force under human rights norms, including the right to act legitimately in self-defense. 117 McCann, 21 Eur. H.R. Rep. at 160, para. 148. 118 Id., para. 149. 119 Tennessee v. Garner, 471 U.S. 1 (1985). This case and Graham v. Connor, 490 U.S. 386 (1989), require a police officer to have probable cause to believe a suspect poses a threat of serious physical harm, either to the officers or to others, before using force to prevent escape. The Graham case sets out an objective standard of reasonableness to consider if a suspect poses an immediate threat to the safety of police officers or others. This case law was relied on by the Department of Justice in its review of the 1992 shooting of a suspects wife by an FBI sniper, in which it determined that rules of engagement directing the police that deadly force can and should be employed against an adult male with a rifle if the shot could be taken without endangering any children were improper and failed to comply with constitutional standards. U.S. DEPT OF JUSTICE, REPORT ON INTERNAL REVIEW REGARDING THE RUBY RIDGE HOSTAGE SITUATION AND SHOOTINGS BY LAW ENFORCEMENT PERSONNEL, pt. IV.F.4, available at <http:// www.byington.org/Carl/ruby/ruby4.6.htm> (visited Oct. 26, 2003). 120 Garner, 471 U.S. at 9. 121 See Idaho v. Horiuchi, 253 F.3d 359, 377, vacated as moot, 266 F.3d 979 (9th Cir. 2001), quoted in William C. Banks & Peter Raven-Hansen, Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. RICH. L. REV. 667, 677 (2003), which found that wartime [shoot-to-kill] rules are patently unconstitutional for a police action. See also McKerr v. United Kingdom, 34 Eur. H.R. Rep. 553, 59596, para. 100 (2001) (allegations by next of kin that pattern of conduct by police authorities in using unnecessary and disproportionate force was evidence of a shoot-to-kill policy). 122 Basic Principles, supra note 63, paras. 1, 11. 123 Id., paras. 2, 3. 124 Id., para. 10. 125 Id., para. 11(b). 126 Id., para. 9. 127 Id., para. 4.
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principles.128 Strict accountability for the use of firearms is called for by requirements to set up a system of reporting whenever law enforcement officers use such weapons and to report any incident of death or injury caused by the use of force.129 Law enforcement officers must be held accountable for the firearms and ammunition issued to them.130 Governments, for their part, must provide adequate training and establish effective reporting and review procedures.131 In addition to making an independent administrative or prosecutorial review available, governments should enable persons affected by the use of force to access an independent process, including a judicial process.132 Superior officers are to be held responsible if they know or should have known that subordinates had resorted to the unlawful use of firearms and they did not take all measures in their power to prevent, suppress or report such use.133 Governments are to ensure that any arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offense.134 Immunity shall be extended to law enforcement personnel who refuse to carry out an order contrary to these principles.135 Finally, the defense of superior orders cannot be claimed if the order was manifestly unlawful and the officer had a reasonable opportunity to refuse to follow it.136 Similar accountability requirements can be found in the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.137 These principles emphasize the protection of evidence of the crime scene, including by conducting an adequate autopsy.138 Both sets of principles demonstrate the extent to which the human rights process seeks to limit the use of force and stresses accountability. Human rights law devotes particular attention to an effective official investigation when individuals have been killed as a result of the use of force.139 The investigation is aimed at ensuring that domestic laws safeguarding the right to life are properly implemented and that state agents or bodies are held accountable for deaths occurring under their responsibility.140 The expectation that such an investigation will result almost automatically from a use of force is reflected in the decision of the European Court of Human Rights in McKerr v. United Kingdom, where the Court found that this expectation was implied in the European Convention on Human Rights.141 The Court further stated that no matter what mode of investigation is employed, the authorities must act on their own initiative once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.142 This process involves taking reasonable steps to secure evidence, such as eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death.143
Id., para. 8. Id., paras. 6, 11(f). 130 Id., para. 11(c). 131 Id., para. 22. 132 Id., para. 23. 133 Id., para. 24. 134 Id., para. 7. 135 Id., para. 25. 136 Id., para. 26. 137 ESC Res. 1989/65, annex, 1989 UN ESCOR, Supp. No. 1, at 52, para. 1, UN Doc. E/1989/89, available at <http:// www.umn.edu/humanrts/instree/i7pepi.htm>. Exceptional circumstances such as a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. 138 Id., para. 9. 139 McKerr, 34 Eur. H.R. Rep. 553, 599, para. 111 (2001). 140 Id. 141 Id. (citing European Convention on Human Rights, supra note 65, Arts. 1, 2). 142 Id. 143 Id. at 599, para. 113; see Ogur v. Turkey, 31 Eur. H.R. Rep. 912, 94445, para. 91 (1999) (holding that the lack of a postmortem or other forensic examination and the failure to question personnel involved in the operation were indicative of an improper investigation); see also Gl v. Turkey, 34 Eur. H.R. Rep. 719, 74446, paras. 8895 (2000).
129 128
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An effective investigation must be capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances144 and should be conducted by persons independent of the state authorities implicated in the events. Moreover, the investigation should make it possible to identify those responsible and should support their punishment.145 The requirement of independence means not only a lack of hierarchical or institutional connection but also a practical independence.146 Further, the strict scrutiny of the use of lethal force is not limited to the actions of the state agents who administer the force, but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.147 Reviewing issues like planning and control introduces an element of overall state responsibility and inevitably takes in factors like training, orders, and rules of engagement. The review process must be reasonably expeditious and the investigation or its results must be subjected to a sufficient element of public scrutiny . . . to secure accountability in practice as well as in theory.148 The next of kin or the victim must be involved to the extent necessary to safeguard his or her legitimate interests.149 Examples of the mechanisms of review include police investigations, an independent prosecutor, a coroners inquest, and criminal proceedings.150 However, even where a multilayered process is in place, it may not meet the standards of independence and transparency required under a human rights supervisory framework. For example, in McKerr the lack of an independent police investigation, the decision of the director of public prosecutions not to explain why certain charges were not pursued, the limited role of the inquest, the nondisclosure of witness statements, the withholding of privileged information by government officials, the inability to compel the police officers to attend the inquest, and delays in both the police investigation and the inquestall combined in the finding of a breach of the right to life under Article 2 of the European Convention.151 Applied to its full effect, the human rights accountability framework demands the commitment of significant state resources and an exhaustive review of each use of deadly force. Perhaps inevitably in the context of a system designed to limit the use of force, the increased levels of violence associated with terrorism have presented a special challenge to human rights supervisory bodies. The stress on the accountability process was evident in the decision of the European Court of Human Rights in McCann and Others v. United Kingdom,152 a case that involved the Irish Republican Army, a highly organized terrorist group capable of transnational violence. Since the British government, using law enforcement means, albeit with military assistance,153 has dealt with the IRA as a criminal organization, this European human rights case provides a useful contrast with the assessment of the use of force in international armed conflicts. McCann involved the thwarting in 1988 by Gibraltar police and British military personnel of a planned IRA car bomb attack against a military units ceremonial parade assembly area. The goal of the militarys participation was to assist the police in arresting an IRA Active Service Unit. As the operation unfolded, however, all three suspects were shot multiple times by members of the Special Air Service and killed. The soldiers had feared that the terrorists were going to set off the bomb by means of a push-button remote device, but when the operation was over, no weapons or detonating devices were discovered.
144 145
McKerr, 34 Eur. H.R. Rep. at 599, para. 113. Id. 146 Id., para. 112. 147 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 161, para. 150 (1995). 148 McKerr, 34 Eur. H.R. Rep. at 600, para. 115. 149 Id. 150 Id. at 60312, paras. 12456. 151 Id. at 61213, paras. 15758. 152 McCann, 21 Eur. H.R. Rep. 97 (1995). 153 G. DAVIDSON SMITH, COMBATING TERRORISM 149 (1990).
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A badly divided court (10-9) agreed that the actions of the soldiers in shooting to kill did not violate the right to life, as they had honestly believed it necessary to use lethal force in order to safeguard innocent lives.154 Yet the Court disagreed on whether the operation was controlled and organized in a manner consistent with Article 2 of the European Convention. The decision to allow the suspects into Gibraltar was seen by the Court as a serious miscalculation. It also determined that the authorities had failed to make allowances for alternative assumptions about the threat posed by the terrorists.155 Further, the majority ruled that the soldiers reflex action in shooting to kill lacks the degree of caution . . . to be expected from law enforcement personnel in a democratic society.156 In contrast, the minority believed that assessments of the situation should avoid the temptations offered by the benefit of hindsight,157 that the authorities had been forced to plan and act on the basis of incomplete information, and that the soldiers had faced a potentially devastating threat.158 In addition, the suspects had chosen to place themselves in a situation where there was a grave danger that the soldiers obligations to protect the lives of the suspects as well as civilians and military might conflict.159 Finally, the minority found strong evidence of a major terrorist attack in the works and observed that simply stopping the terrorists at the border would have increased the risk that the IRA could successfully mount a renewed terrorist attack on Gibraltar.160 Significantly, a key element of the disagreement within the Court concerned the issue of control. The majority thought the situation should be controlled by keeping the terrorists out of the jurisdiction, largely because of the danger they posed to the citizens of Gibraltar. That consideration, in the Courts view, outweighed whether there would have been sufficient evidence to detain and arrest the suspects at the border.161 Unfortunately, the majority did not consider the severity of the ongoing threat posed by the terrorists. The minority appears to have concluded that control was best exercised by allowing the terrorists to enter the jurisdiction. They could then be stopped when a sufficient basis to take action against them was established. This course exposed innocent civilians in Gibraltar to greater risk and increased the likelihood that deadly force would be used. These different approaches highlight the traditional domestic focus of law enforcement and the jurisdictional limitations associated with most criminal law. However, in the contemporary situation of externally based terrorist groups willing to use weapons of mass destruction, the options of keeping them outside the jurisdiction or allowing them to enter both introduce a measurably higher risk. Ultimately, neither option may appear attractive from a security perspective. As a result, the state would inevitably be placed in the position of relying on another state to remove the terrorist threat (assuming that the latter state is willing or capable of acting) or of exercising self-help either individually or collectively with other states in that regard.162
154 McCann, 21 Eur. H.R. Rep. at 173, para. 200; id. at 179, para. 5 (joint dissenting op.). The majority determined that where a decision by security forces to use lethal force is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken, it could be justified under the European Convention on Human Rights. 155 Id. at 174, 17677, paras. 205, 213. 156 Id. at 176, para. 212. 157 Id. at 180, para. 8. 158 Id. at 18081, para. 9. 159 Id. at 181. 160 Id. at 182, para. 11. 161 Id. at 174, para. 205. 162 The issue of control is raised in the following quote by a senior Israeli official regarding the policy of targeted killing:
Targeted killing is not only very valuable, Maj. Gen. Giora Eiland, chief of planning and policy in the Israeli military and one [of] its most senior officers, said in a recent interview. If we could not use this method in areas like Gaza, where we do not control the territory . . . we could not fight effectively against terrorist groups. Moore, supra note 53.
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The limitations of the McCann case are not pointed out here to suggest that military forces employed in a domestic law enforcement role should not be subjected to a human-rightsbased accountability framework, but simply that the nature of the threat and the resulting circumstances within which force is applied will ultimately govern the choice of that framework. A threatened use of weapons of mass destruction by a transnational terrorist group may not be amenable to a human-rights-based review process. For example, when the violence used by terrorists reaches the level inflicted by Al Qaeda on September 11, 2001, state action under human rights principles will find itself less applicable than it was in McCann. Proponents of the view that terrorism is best dealt with as a law enforcement matter may have to be prepared to consider shooting down a hijacked civilian plane. Factors to be taken into account would inevitably include the damage the plane might inflict on its intended target. Such an analysis would also have to weigh the relative importance of both objects (either state or private property) and people (military or civilian). Finally, a proportionality assessment would have to be made regarding the number of innocent civilians who would be killed if the plane were shot down. State authorities would probably be under pressure to reach a decision with little time for reflection and limited information about the intentions and motivations of the hijackers. Anyone considering such a scenario in terms of a human-rights-based accountability process would in effect have to apply armed conflict targeting principles. Thus do acts of terrorism on the scale now threatened bring new challenges to the traditional human rights concepts regarding the use of force. Moreover, the attempt to apply human rights standards to a situation of armed conflict could have an adverse impact on the integrity and strength of peacetime norms.163 Rather than attempt to extend human rights norms to an armed conflict scenario, the appropriate approach is to apply the lex specialis of humanitarian law. Force applied in accordance with humanitarian law could not result in extralegal killing since it would not constitute an arbitrary deprivation of life. Domestic courts and review bodies are capable of applying these humanitarian law criteria; however, it will require a way of thinking about both the threat and the states reaction to it that differs from traditional law enforcement approaches. VI. ACCOUNTABILITY AND CONFLICT Like the human rights framework governing the use of force, international humanitarian law has an accountability structure. The principle of criminal responsibility, including command responsibility, is well established under international humanitarian law.164 The doctrine of superior orders and the obligation to disobey manifestly illegal orders165 are also fundamental tenets of the law regulating armed conflict. A condition precedent for attaining combatant status is the existence of a responsible command and a disciplinary system that enforces compliance with the rules of international law in hostilities.166 In addition, states commonly issue standing and mission-specific rules of engagement to govern the use of force during operations. Significant efforts have been made to establish an international legal framework of individual criminal responsibility through the definition of international crimes and the creation of ad hoc and permanent international criminal courts. In addition, the International Court of Justice remains available, subject to special jurisdictional limitations, to deal with disputes between states. Additional Protocol I to the 1949 Geneva Conventions makes provision for an
163 Michael J. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, 91 AJIL 417, 423 (1997). 164 Protocol I, supra note 42, Arts. 86, 87; see also Prosecutor v. Delali , supra note 57, paras. 18299. 165 ICC Statute, supra note 27, Art. 33; see also Prosecutor v. Erdemovi , Sentencing Judgment, No. IT9622Tbis (Mar. 5, 1998). 166 Protocol I, supra note 42, Art. 43.
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International Fact-Finding Commission.167 States can also attempt to use traditional means of enforcing compliance with international humanitarian law, such as reprisals, although the ability to engage in reprisals has been significantly limited by developments in international humanitarian law.168 The accountability structure can be enhanced by the development of neutral claims commissions to deal with claims arising from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.169 The effort to enhance the accountability framework under international humanitarian law has not been limited to situations of international armed conflict. The Appeals Chambers decision in Prosecutor v. Tadi ,170 the Statute of the International Criminal Tribunal for Rwanda,171 and the Rome Statute of the International Criminal Court172 recognize the need to expand the reach of the accountability process under humanitarian law to internal conflicts. Nevertheless, within the international humanitarian law normative framework, there is no body like the European Commission of Human Rights or the Human Rights Committee, capable of making objective determinations of fact.173 International and regional human rights bodies have begun to fill this void with respect to both international and noninternational armed conflict by venturing into what has traditionally been viewed as the separate and discrete area of international humanitarian law.174 For example, the Inter-American Commission on Human Rights decided that it was competent to apply international humanitarian law in cases like Abella v. Argentina175 and Coard v. United States.176 The Abella case involved the 1989 seizure of a military barracks by forty-two armed attackers during an abortive coup attempt in Argentina, and the Coard case dealt with a challenge by seven persons who were detained by the United States during the 1983 military operation in Grenada. The decision by the Commission in Abella has been the subject of critical comment.177 The United States objected in the Coard case to the competence of the Commission to apply international humanitarian law.178 The United States has similarly challenged the Commissions authority to issue precautionary measures, asking that the legal status of Qaeda and Taliban detainees at Guantnamo Bay be determined by a competent tribunal.179 This position is based in part on the argument that the Commission lacks the jurisdictional competence to apply international humanitarian law.180
167 Id., Art. 90. For a general discussion of the means available to prevent breaches of international humanitarian law and supervise the conduct of the parties to a conflict, see GREEN, supra note 8, ch. 17. 168 For assessments of the limitations on the use of reprisals under international humanitarian law, see Christopher Greenwood, Reprisals and Reciprocity in the New Law of Armed Conflict, in ARMED CONFLICT AND THE NEW LAW 227 (Michael A. Meyer ed., 1989); Meron, supra note 57, at 24751. 169 Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Dec. 12, 2000, Art. 5, 40 ILM 260 (2001). 170 Prosecutor v. Tadi , supra note 8, paras. 96127. 171 Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, SC Res. 955, Art. 4 (Nov. 8, 1994), 33 ILM 1598 (1994). 172 ICC Statute, supra note 27, Art. 8(2)(e). 173 Franoise Hampson, Human Rights and Humanitarian Law in Internal Conflicts, in ARMED CONFLICT AND THE NEW LAW, supra note 168, at 55, 71. 174 For an outline of the increasing involvement of various UN and regional bodies in referring to international humanitarian law norms, see Meron, supra note 57, at 26675. 175 Abella, supra note 113. 176 Case 10.951, Coard and Others v. United States, 123 ILR 156 (Inter-Am. Commission report 1999); see also Case 10.573, Salas and Others v. United States, 123 ILR 118 (Inter-Am. Commission report 1993). 177 Liesbeth Zegveld, The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case, 38 INTL REV. RED CROSS 505 (1998). 178 Coard, 123 ILR at 169, para. 38. 179 Inter-American Commission on Human Rights, Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba) (Mar. 12, 2002), 41 ILM 532 (2002). 180 Response of the United States to Request for Precautionary MeasuresDetainees in Guantanamo Bay, Cuba (Apr. 15, 2002), 41 ILM 1015, 1019 (2002).
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In contrast, the European Court of Human Rights has made some limited direct use of international humanitarian law. For example, in Ergi v.Turkey181 the Court looked at whether gendarmes had failed to take all feasible precautions in the choice of means and methods of a security operation involving the placement of an ambush.182 This use of the language of international humanitarian law resulted from the direct interface that can occur between that law and human rights norms when dealing with terrorist activity. More recently, in Bankovi v. Belgium and Others,183 a group of Yugoslav citizens challenged NATOs bombing of the Serbian radio station during the 1999 Kosovo campaign. The government respondents argued, inter alia, that international humanitarian law, the International Criminal Court for the Former Yugoslavia, and the International Criminal Court were created to deal with the conduct of states engaged in military action;184 but the Court did not rule on that issue, as it ultimately found it did not have jurisdiction on other grounds. Despite ongoing controversy over the involvement of human rights bodies in applying international humanitarian law, it has been said to fill an institutional gap and give international humanitarian law an even more pro-human-rights orientation.185 This is a gap in which human rights nongovernmental organizations (NGOs) and the media are taking increasing interest. The resulting public scrutiny and movement by states to address that concern have considerably influenced the way modern military forces conduct hostilities.186 Given the degree of interaction between international human rights law and humanitarian law, and their sharing of many principles, it may become more and more difficult to suggest that human rights bodies should not apply principles of international humanitarian law. While there is force to the argument that international humanitarian law consists of a discrete body of law for the governance of most interstate conflict, this view must inevitably be reconciled with situations where a state continues to exercise forms of internal governance during armed conflict. Although the Martens clause might be interpreted as denying the existence of a gap in the application of humanitarian principles during armed conflict, such an approach does not address what the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience187 actually means when dealing with situations more commonly associated with such internal governance. As noted above, the two normative frameworks may interact directly in noninternational armed conflict, the governance of occupied territories, and countering the contemporary threat of international terrorists operating within a state. The long-term solution to this issue may not be to bar the door to human rights principles and their advocates but, rather, to ensure that human rights accountability mechanisms take into consideration both the nature of warfare and the unique aspects of international humanitarian law. VII. THE DIRECT INTERFACE The direct interface between humanitarian law and human rights law with respect to internal governance can be seen in the potential involvement of law enforcement authorities in countering violence that reaches a level bordering on armed conflict. One way the division between the two normative legal regimes is effected is by attempting to separate police forces from forces with the status of combatants. For example, Article 43(3) of Additional
Ergi v. Turkey, 32 Eur. H.R. Rep. 388 (1998). Id. at 431, para. 79. 183 Bankovi v. Belgium and Others, 123 ILR 94 (2001). 184 Id. at 105, para. 43. 185 Meron, supra note 57, at 247. 186 See, e.g., Sarah Sewall, An Empty Pledge to Civilians? N.Y. TIMES, Mar. 21, 2003, at A19 (noting that public concern over civilian casualties in Iraq prompted the U.S. military to publicize its significant efforts to limit collateral damage). 187 Hague Regulations, supra note 104, pmbl.
182 181
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Protocol I provides for the incorporation of a paramilitary or armed law enforcement agency into the armed forces of a party to the conflict. Police personnel not incorporated into the armed forces would remain focused on law enforcement functions. In dealing with civil defense, Additional Protocol I contemplates the deployment of lightly armed personnel (including members of military units) who are not considered part of the armed forces, but are tasked with emergency assistance in the restoration and maintenance of order in distressed areas.188 Similarly, with regard to occupied territories, Article 54 of the Fourth Geneva Convention stipulates that public officials, which includes police officers, shall maintain their status after occupation has commenced. Nevertheless, the potential remains for a significant interface between ordinary law enforcement and actual armed conflict. The type of conflict most often referred to as one where human rights law and humanitarian law interact is noninternational armed conflict. Common Article 3 of the 1949 Geneva Conventions has been described as a Convention in miniature.189 It establishes minimum standards of humane treatment for internal armed conflicts. In addition, a person can benefit from international humanitarian law because it does not permit derogation on grounds of emergency, a rule that was developed precisely for situations of the highest emergency.190 Similarly, Theodor Meron has noted that because human rights law, or at a minimum its nonderogable core, continues to apply in times of armed conflict, gaps in protection under the law of war can be filled in some circumstances.191 The exact nature and extent of this interface is not always clear. Common Article 3 does not provide guidance as to the level of conflict that is required before it can be invoked. In contrast, Additional Protocol II, which supplements common Article 3, applies when dissident armed forces or other organized groups under responsible command exercise such control over a part of [a contracting partys] territory as to enable them to carry out sustained and concerted military operations,192 although the Protocol does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.193 In general, one finds a reluctance to extend this minimum standard to the application of common Article 3 of the Geneva Conventions, probably out of concern that it would adversely affect efforts to extend humanitarian protection to victims of an internal armed conflict.194 There is an ongoing tension between efforts to incorporate humanitarian standards into noninternational armed conflicts and the view of states that such conflicts involve the legitimate suppression of criminal activity. Common Article 3 acknowledges that the legal status of the parties is not affected by its provisions, and Additional Protocol II confirms the role of the state in using legitimate means to maintain or reestablish law and order or to defend
188 Protocol I, supra note 42, Art. 61(1)(k). These civil defense personnel lose their protected status if they perform acts harmful to the enemy. Military personnel serving in civil defense organizations are prisoners of war. Id., Arts. 65(1), 67(2). 189 ICRC COMMENTARY, supra note 9, Art. 3, at 34, 41. 190 Meron, supra note 57, at 267. 191 Id.; see also Asbjrn Eide, Allan Rosas, & Theodor Meron, Combating Lawlessness in Gray Zone Conflicts Through Minimum Humanitarian Standards, 89 AJIL 215 (1995). 192 Protocol II, supra note 27, Art. 1. 193 Id., Art. 2. The declaration of the United Kingdom, made at the time it signed Additional Protocol I, states that the level of intensity of military operations that must be present before the Protocol or the Conventions apply cannot be less than that required for the application of Protocol II . . . to internal conflicts. United Kingdom, Declaration, para. (a), 1125 UNTS 432, 432, available at <http://www.icrc.org/ihl>. 194 In Abella, supra note 113, at 68184, paras. 15253, the Inter-American Commission on Human Rights was of the view that common Article 3 did not extend to riots, mere acts of banditry or an unorganized and short-lived rebellion; however, the Commission also acknowledged that the line separating an especially violent incident of international disturbances from the application of international humanitarian law principles may sometimes be blurred and, thus, not easily determined. See also Hampson, supra note 173, at 6768, for a discussion of the scope of common Article 3 of the 1949 Geneva Conventions.
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national unity and territorial integrity.195 Nevertheless, principles of customary international law have been recognized as applicable to noninternational armed conflict196 and it is open to the parties to negotiate special arrangements to bring the remainder of each Convention into force. This approach has been used to obtain prisoner-of-war treatment for captured personnel.197 In addition, as noted, Additional Protocol II does provide for the protection of civilians unless and for such time as they take a direct part in hostilities. As a result, in making decisions on targeting, attacks on persons must be limited to those participating directly in the conflict. The introduction of international humanitarian law norms into internal conflicts requires the consideration of two legal systemsthe national and the internationalwhich have not been harmonized, side by side.198 The lack of a clear line of demarcation between states of emergency and the point at which an armed conflict starts makes it difficult to assess when consideration of human rights norms should end and the application of international humanitarian law norms should begin. Criteria such as levels of violence and a states ability to exercise normal control, particularly over territory, offer some guidance.199 In Abella the Inter-American Commission on Human Rights relied on the concerted nature of the hostile acts undertaken by the attackers, the direct involvement of governmental armed forces, and the nature and level of the violence in deciding that international humanitarian law applied.200 However, the involvement of military forces cannot be understood as automatically determining that an armed conflict exists. In McCann the European Court of Human Rights was careful to note that the use of the specialized military forces was only natural in order to deal with the threat in the safest and most informed manner possible.201 Ultimately, care may need to be taken to avoid rushing to a determination that international humanitarian law applies since that law introduces broader authority to use force, including the targeting of individuals. Another challenge in trying to ascertain when law enforcement rules end and those governing armed conflict begin arises with respect to occupied territory. The development of the Fourth Geneva Convention constituted one of the most noteworthy advances in international humanitarian law of the twentieth century. The Convention operates as part of the lex specialis of international law, but it also incorporates many human rights principles.202 It clarifies the role of the occupier regarding civilians falling under its jurisdiction and requires the maintenance, with some exceptions, of the penal laws, tribunals, judges, and public officials of the occupied territories.203 The occupier becomes responsible for maintaining law and order
195 196
Protocol II, supra note 27, Art. 3(1). Prosecutor v. Tadi , supra note 8, paras. 96127. 197 Neither common Article 3 of the 1949 Geneva Conventions nor Additional Protocol II refers to combatants. An example of a special agreement extending treatment as POWs to combatants can be found in the Bosnia and Herzegovina Agreement No. 1, which states, Captured combatants shall enjoy the treatment provided for by the Third Geneva Convention. Agreement No. 1, May 22, 1992, Bosn.-Herz., 2.4, reprinted in MARCO SASSLI & ANTOINE A. BOUVIER, HOW DOES LAW PROTECT IN WAR? 1112, 1115 (1999). 198 W. J. Ford, Resistance Movements and International Law (IV), INTL REV. RED CROSS, Jan. 1968, at 7, 12. 199 However, as Meron notes: There is no agreed-upon mechanism for definitively characterizing situations of violence. Meron, supra note 57, at 261. 200 Abella, supra note 113, at 684, para. 155. 201 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 168, para. 183 (1995); see also MOIR, supra note 49, at 39. 202 Jochen Abr. Frowein, The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, 1998 ISR. Y.B. HUM. RTS. 1. In assessing the interface between the two normative regimes, Frowein concludes that the law of belligerent occupation has a limited specific jurisdiction over everyone under its jurisdiction. That means, he states, that the obligations under the human rights conventions do apply. However, the specific rules of the Fourth Geneva Convention take precedence regarding specific measures which are justified on the basis of these provisions. Id. at 11. 203 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. 54, 64, 6 UST 3516, 75 UNTS 287.
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in occupied territories.204 These requirements, in turn, point to a human rights regime of accountability to govern the law enforcement activities of security officials. In some respects the role performed by the occupier resembles governance during noninternational armed conflicts, as the task can range from ordinary policing to direct participation in combat. It has been indicated that a human rights framework may be applied as a matter of law to areas of occupation because of the nature of the control exercised by the occupying authorities. In Bankovi the European Court of Human Rights indicated that where effective control is exercised by the state over territory and its inhabitants abroad, it may result in the extraterritorial application of the human rights regime. However, the Court was also careful to note that the Convention is a constitutional document operating in a regional context and was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.205 In Coard the Inter-American Commission on Human Rights interpreted its jurisdiction as extending to areas where the person concerned is present in the territory of one State, but subject to the control of another Stateusually through the acts of the latters agents abroad.206 Similarly, Professor Meron has argued that the International Covenant on Civil and Political Rights should be construed as having extraterritorial application.207 However, even if it were determined that a human rights system of accountability did not apply as a matter of law to occupied territory, it would ordinarily be logical as a matter of policy to apply human rights norms to an occupiers policing function. The use of force in occupied territory will not always be amenable to the supervision of a human rights framework. The Fourth Geneva Convention has to be read with the understanding that it focuses on the protection of civilians. Neither that Convention nor the provisions of the 1907 Hague Conventions on occupation encompass all aspects of international humanitarian law applicable to occupied territory. While arrest and prosecution are an available option for dealing with threats to security, the Geneva Convention does not give any concrete directions on how to confront resistance movements militarily. An occupying power is going to face situations of common criminal activity that are more suitable for a human rights regime of accountability. Such situations could involve the operations of the civilian police force of the occupied territory, as well as the security forces of the occupying power. At the same time, an armed conflict may be continuing and the hostilities may involve the direct participation of both combatants and civilians. The term used by Francis Lieber for resisters in occupied territory was war-rebel, which meant one who return[s] to war after having been conquered.208 After a limited attempt to extend prisoner-of-war status to members of organized resistance movements in the Third Geneva Convention, Additional Protocol I now provides less stringent criteria for them to gain combatant status.209 Operations against those combatants are covered by international humanitarian law. A similar conclusion can be reached about resistance movements whose members are unprivileged belligerents. While their crimes are considered domestic in nature, unprivileged belligerents can pose the same threat as combatants. Their resistance thus falls within the category of armed conflict, as would operations by groups that use terrorist tactics in conducting their resistance.
Hague Regulations, supra note 104, Art. 43. Bankovi v. Belgium and Others, 123 ILR 94, 116, para. 80 (2001). For further discussion on the territorial scope of human rights protection, see Fitzpatrick, supra note 33, at 25255. 206 Coard and Others v. United States, 123 ILR 156, 168, para. 37 (Commission report 1999). 207 Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AJIL 78, 7879 (1995). 208 Francis Lieber, Guerrilla Parties Considered with Reference to the Laws and Usages of War, reprinted in RICHARD SHELLY HARTIGAN, LIEBERS CODE AND THE LAW OF WAR 31, 37 (1983). 209 The expansion of Article 4(2) of Geneva Convention No. 3, supra note 10, to include organized resistance movements is widely seen as an ineffectual attempt to provide POW status to irregular forces carrying out indirect warfare in occupied territory, as it still required the wearing of a fixed, distinctive sign. See also Protocol I, supra note 42, Arts. 43, 44.
205 204
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The challenge lies in separating incidents that are simply criminal in nature from those that form part of the armed conflict. The difficulty of separating civil unrest from ongoing armed resistance has been graphically illustrated in the attacks on forces of the United Kingdom and the United States following the cessation of major combat operations in Iraq on May 1, 2003.210 Criteria not that dissimilar to those used to identify noninternational armed conflicts might be employed, including the nature of the opposing force (i.e., Is the group organized to conduct hostilities?), the level of violence used by the group, and the degree of freedom of the group in terms of operating outside the occupying powers control. Situations involving lengthy periods of occupation, such as in the Middle East, further complicate attempts to resolve the interface between human rights law and international humanitarian law.211 Long-term governance might inevitably create the expectation that international human rights norms associated with peaceful governance will apply. Yet even in the Israeli/Palestinian conflict it is widely recognized that international humanitarian law applies in the occupied territories.212 As a result, in addition to the provisions protecting persons in occupied territories found in the 1907 Hague Regulations and the Fourth Geneva Convention, the rules on the methods and means of warfare will be applicable. International humanitarian law would therefore govern the use of force relating to the conduct of hostilities. The question is not necessarily whether individuals will be targeted but, rather, whether the targeted person is taking a direct part in hostilities and whether operations are conducted according to the laws governing armed conflict.213 The third situation involving a direct interface between human rights law and international humanitarian law arises in the context of the postSeptember 11 domestic operations conducted as part of the war on terrorism. Many countries have been engaged in an international armed conflict in Afghanistan and elsewhere, such as on the high seas. Even though the acts of terrorism being defended against are instigated and planned offshore, they can manifest themselves as concrete threats arising from within the state. As President George W. Bush has noted in respect of the United States, [T]he front of the new war is here in America.214 In this conflict the law enforcement apparatus of the state plays the leading role in countering the terrorist threat domestically. In the United States the National Strategy for Homeland Security identifies six critical mission areas: intelligence and warning, border and transportation security, domestic counterterrorism, protecting critical infrastructure, defending against catastrophic terrorism, and emergency preparedness and response.215 The Department of
210 Address to the Nation [by President George W. Bush] from the U.S.S. Abraham Lincoln, 39 WEEKLY COMP. PRES. DOC. 516 (May 5, 2003). However, this did not mean that all combat operations had ended. Amy Waldman, After the War: Combat; U.S. Still at War, General Declares, N.Y. TIMES, July 4, 2003, at A1. 211 For a discussion of this interface, see Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 97 (1990). 212 Israel claims that the Fourth Geneva Convention does not apply as a matter of conventional law to its control of the occupied territories, although the government has indicated its willingness to follow the humanitarian provisions of the Convention. The Israeli government has not contested the application of the 1907 Hague Regulations to those areas. DAVID KRETZMER, THE OCCUPATION OF JUSTICE 3234 (2002); see also MICHAEL J. KELLY, RESTORING AND MAINTAINING ORDER IN COMPLEX PEACE OPERATIONS 15659 (1999). As Adam Roberts notes, the majority of the international community, and of international legal opinion, has not accepted that the Fourth Geneva Convention is not formally applicable in that case. Adam Roberts, What Is a Military Occupation? 1984 BRIT. Y.B. INTL L. 249, 282. Recognition of the application of international humanitarian law is reflected in the 2002 United Nations report on events in Jenin and other Palestinian cities. Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES10/10, UN Doc. A/ES10/186, at 5, paras. 1113; see also AMNESTY INTERNATIONAL, ISRAEL AND THE OCCUPIED TERRITORIES: SHIELDED FROM SCRUTINY: IDF VIOLATIONS IN JENIN AND NABLUS 6065 (AI Index No. MDE 15/143/2002, Nov. 2002); JENIN: IDF MILITARY OPERATIONS, 14 HUMAN RIGHTS WATCH, ISRAEL, NO. 3(E), May 2002, at 1011, available at <http://hrw.org/reports/2002>. 213 See AMNESTY INTERNATIONAL, supra note 212, at 62 (indicating that persons who take direct part in hostilities may temporarily lose their status as protected persons, but they do so only for such time as they take direct part in hostilities). But see Parks, supra note 112, at 11820. 214 Remarks on Signing the Homeland Security Act of 2002 (Nov. 25, 2002), 38 WEEKLY COMP. PRES. DOC. 2090, 2090 (Dec. 2, 2002). 215 NATIONAL STRATEGY FOR HOMELAND SECURITY, supra note 2, at viii.
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Justice and the Federal Bureau of Investigation remain the leading law enforcement agencies for countering the terrorist threat.216 Similarly, in Canada the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, and other nonmilitary forces are the primary responders to threats presented by Al Qaeda.217 Overall, the mobilization of national policing assets represents a new form of participation in conflict that is significantly different from that taken in World War II. It is also an approach that appears to run counter to the humanitarian law attempt in Additional Protocol I to separate armed forces from the exercise of the policing function.218 The law enforcement focus of the response to international terrorism emanates directly from the nature of the threat. Terrorist groups like Al Qaeda are private nonstate actors who carry out part of their operations within the state. They rely on concealment within the population both for protection and for carrying out their terrorist acts. In international humanitarian law terms, their status is that of unprivileged belligerents and it does not change whether they are operating outside or inside a state. Where necessary, Al Qaeda has been targeted internationally under the governing framework of international humanitarian law. However, despite being carried out in the context of an armed conflict, the terrorist acts themselves contravene the domestic laws of the state in which they are performed. The internal law enforcement response is consistent with the nature of the threat and the control exercised by the state domestically. Further, it directly reflects the effectiveness of internal state mechanisms in dealing with criminal activity within national borders. The use of domestic police and counterintelligence agencies also offers the potential to minimize violence and therefore enhance political acceptability, particularly in democracies. While the military has a role to play in domestic law enforcement, in many states it does not normally represent the most effective means of countering the threat. This limitation does not mean there will be no need for a military response. As was evidenced on September 11, 2001, the violence inflicted by international terrorism can quickly reach the level of an armed attack as contemplated in Article 51 of the United Nations Charter. However, in practical terms, the training and type of operations law enforcement personnel would be involved in to counter the new terrorist threat would usually bring the governance of the use of force comfortably within the human-rights-based structure. Still, assessing when the threat can justify the use of force remains a challenge under international humanitarian law and, like deciding to use armed force internationally, appears to be primarily an executive function based on the distribution of authority under domestic constitutional arrangements.219 The thresholds to be applied in deciding how to counter domestic threats posed by international terrorist groups like Al Qaeda are not dissimilar to the types of decisions that must be made for noninternational armed conflicts and occupied territories. The transition to a response governed by international humanitarian law is linked directly to the nature of the threat and the level of violence. The states response would be controlled in practical
216 Id. at 2528; U.S. Dept of Homeland Security, Organization of the Department of Homeland Security, at <http://www.whitehouse.gov/deptofhomeland/sect2.html> (visited Oct. 26, 2003). The response designed to secure the United States from terrorist attacks has included the reorganization of government departments into a Department of Homeland Security. 217 Dept of Foreign Aff. & Intl Trade, Canadas Actions Against Terrorism Since September 11thBackgrounder, at <http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=1&cat=1&did=1250> (last modified Oct. 30, 2002); Royal Can. Mounted Police, PostSeptember 11thThe Fight Against Terrorism, at <http://www.rcmpgrc.gc.ca/security/index_e.htm> (last modified Dec. 23, 2003); Can. Security & Intelligence Serv., Counter-Terrorism (Aug. 9, 2002), at <http://www.csis-scrs.gc.ca/eng/operat/ct_e.html>. 218 Protocol I, supra note 42, Art. 43. 219 For example, the United States has a well-developed legal framework governing the use of its armed forces for homeland defense. A study by Paul Schott Stevens concludes that the constitutional grants of power in combination establish the considerable range of a presidents lawful prerogatives in answering the needs of the nation, most especially in times of grave crisis, and that the president has ample legal authority to call upon the armed forces to defend American territory in the event of a sustained or catastrophic terrorist attack. PAUL SCHOTT STEVENS, U.S. ARMED FORCES AND HOMELAND DEFENSE: THE LEGAL FRAMEWORK 6 (2001).
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terms by rules of engagement. Certainly, a state exercising effective control over its territory, and equipped with a well-functioning law enforcement apparatus, could normally deal forcefully with international terrorists within the more restrictive human rights framework. Thus, the deadly force against those terrorists would not be used under international humanitarian law unless they threatened to wreak violence on a par with the events of September 11, 2001. These three scenarios highlight areas of interface between international human rights law and international humanitarian law. Each scenario involves the state as the right authority dealing with activities that primarily fall within domestic criminal activity but are carried out in the context of an armed conflict. In these situations the nature of the threat and the ability of the state to employ normal mechanisms of control associated with law enforcement and peaceful governance directly affect the response available to it. A major advantage of using force in accordance with human rights norms is that the overall level of violence is lowered. VIII. A ROLE FOR HUMAN RIGHTS IN CONTEMPORARY CONFLICT The question remains as to how the human rights and humanitarian legal regimes can interact. A particular strength of the human rights process has been the development of a strict accountability framework. The present interest expressed by human rights bodies in international humanitarian law may force the generation of a stronger process of accountability than is currently available. For example, use might be made of the International FactFinding Commission provided for under Additional Protocol I.220 As human rights organizations increasingly become involved in issues pertaining to international humanitarian law, two main areas may have to be addressed: clarification of the roles performed by various mechanisms of accountability and adjustment of accountability principles to reflect the nature of the armed conflict in question. The human rights framework does operate in accordance with certain traditional limits that may bear on the role it can play in governing armed conflict. For example, the fact that human rights law is designed to function in peacetime, contains no rules governing the methods and means of warfare, and applies only to one party to a conflict led at least one human rights nongovernmental organization to look to international humanitarian law to provide a methodological basis for dealing with the problematic issue of civilian casualties and to judge objectively the conduct of military operations by the respective parties.221 Objectivity is particularly important. In the Abella case, the Inter-American Commission on Human Rights declined to assess the petitioners motives for taking up arms because as a rule, its jurisdiction does not extend to the conduct of private actors which is not imputable to the State.222 It has been noted that the [a]pplication to only one party to the conflict, the State, may be considered as contradicting a basic principle of humanitarian law, according to which both parties to the conflict have equal rights and duties.223 If a human rights body does not also direct its attention to the actions of a nonstate actor in terms of compliance with international humanitarian law, it may leave the perception of not being evenhanded. The body may even come to be seen as a tool for restricting the activities of one party to a conflict.
220 Protocol I, supra note 42, Art. 90. Human rights principles emphasize transparency in the conduct of investigations. For example, in respect of Iraq, U.S. authorities have been called upon by Amnesty International to establish a thorough, independent and public investigation into deaths and injuries resulting from the use of lethal force during demonstrations by Iraqi civilians. Amnesty International, Press Release, Iraq: Death of Civilian Demonstrators Must Be Investigated (Apr. 30, 2003) (AI Index No. MDE 14/103/2003). However, the ability of the parties to a conflict to limit public disclosure of the findings of the Fact-Finding Commission could hamper its effectiveness. Protocol I, supra, Art. 90(5)(c). 221 Robert Kogod Goldman, International Humanitarian Law: Americas Watchs Experience in Monitoring Internal Armed Conflicts, 9 AM. U. J. INTL L. & POLY 49, 51 (1993). 222 Abella, supra note 113, at 698, para. 175. 223 Zegveld, supra note 177, at 511 n.21.
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Other human rights bodies that may perform an investigatory role regarding the international humanitarian law regime are the ICRC and NGOs. While the ICRC is essential to maintaining standards of humanity in the midst of armed conflict, its focus on the victims of conflict and the need to maintain confidentiality with the parties to the conflict limit the degree to which it can publicize breaches of the Geneva Conventions.224 Human rights NGOs are playing an increasingly important and effective part in pressuring for compliance with international humanitarian law. However, they may find that their effect is limited, like that of human rights supervisory bodies, if they maintain a traditional human rights focus directed solely at the actions of the state. In a positive development, NGOs are devoting more and more attention in their reports to the actions of all groups involved in a conflict.225 Notwithstanding this change in approach by human rights bodies, a report by Human Rights Watch on two shootings of Iraqis by United States military forces in Falluja in late April 2003 highlights the challenges that face NGOs in addressing alleged human rights abuses in the context of international armed conflict.226 The report manifests considerable effort to paint a broad background, including interviews of both U.S. military personnel and local citizens. Ultimately, Human Rights Watch recommends a further full, independent and impartial investigation.227 Its report also reflects traditional human rights goals in seeking to hold people accountable under international humanitarian law. It recommends evaluating the crowd control measures used by United States forces, assessing ways to avoid violence and minimize civilian casualties, determining whether the law enforcement training of the soldiers meets the standards of international humanitarian law, and making the findings of the investigation public.228 What the report does not fully resolve is the impact of ongoing combat operations at the time of the incidents and the possible activities of members of the Iraqi resistance who were alleged to have fired at the troops and fled.229 The report appears premised on the conclusion that the occupying power had entered a postconflict stage and that the military personnel were operating exclusively in a law enforcement role, despite having acknowledged the possible presence of armed resistance forces within the town and the crowd itself.230 In this incident
224 Franoise Hampson, Using International Human Rights Machinery to Enforce the International Law of Armed Conflicts, 31 MIL. L. & L. WAR REV. 119, 137 (1992). 225 See, e.g., AMNESTY INTERNATIONAL, supra note 212, at 67; AMNESTY INTERNATIONAL, WITHOUT DISTINCTION ATTACKS ON CIVILIANS BY PALESTINIAN ARMED GROUPS (AI Index No. MDE 02/003/2002, July 2002); see also CRISIS OF IMPUNITY: THE ROLE OF PAKISTAN, RUSSIA, AND IRAN IN FUELING THE CIVIL WAR 1822, 13 HUMAN RIGHTS WATCH, AFGHANISTAN, NO. 3 (C), July 2001, available at <http://www.hrw.org/reports/2001> (outlining the international humanitarian law violations by both the Taliban and the United Front during the Afghan civil war). 226 VIOLENT RESPONSE: THE U.S. ARMY IN AL-FALLUJA, 15 HUMAN RIGHTS WATCH, IRAQ, NO. 7 (E), June 2003, available at <http://www.hrw.org/reports/2003> [hereinafter FALLUJA REPORT]. The quotation that appears as the epigraph to this article is taken from page 1 of the report. 227 Id. at 2. 228 Id. at 23. The recommendations refer to standards of international humanitarian law. The link to human rights norms appears to arise in the context of the occupying powers obligation to restore and ensure public order and safety, found in Article 43 of the Hague Regulations, supra note 104. The report states that [a]chieving security must however be in conformity with international humanitarian law and human rights standards. Id. at 3. As noted, it is not universally accepted that human rights norms apply as a matter of law, although logic points to their application as a matter of policy, morality, and practicality. 229 Regarding the involvement of possible members of an organized resistance, the report quotes the mayor of Falluja (who was not present at the time of the shooting but had collected information in the town) as stating:
Some of the bad people from the remains of the previous regime, on the day of Saddams birthday, some people in the cover of the demonstration, some Islamic extremists and also some believers in Saddam, wanted to create problems between Islamic extremists and American troops. . . Some of Saddams people carrying his picture and some weapons like Kalashnikovs were benefiting from the slogans. They started to shoot at the school. . . They left immediately and ran away. The Islamists remained in the street. The response [of U.S. soldiers] was intensive and heavy. Id. at 13. 230 The declaration of the close of major combat operations had not been made until May 1, 2003, and even then that declaration did not mean that the armed conflict was over. See supra note 210 and corresponding text.
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and other situations of occupation, the separation between a law enforcement role and operations in armed conflict may not lend itself to being neatly drawn as the occupying power struggles to bring order out of chaos. Over the short term, the task can be complicated by such factors as operations against resistance members integrated into the ordinary civilian population; the need for the occupying power to exert control over territory that may not previously have been the scene of fighting; the potential for significant levels of violence, particularly the use of firearms; and the continuing need to maintain operational security and force protection.231 Furthermore, the presence, or even the potential presence, of firearms within a crowd can call into question the application of many means of crowd control. In this regard traditional human rights norms may not be readily adaptable to the complicated security situations that occur during international armed conflict. For example, the use of riot control agents as a lessthan-lethal means of law enforcement in the midst of an ongoing armed conflict must be reconciled with the prohibition on their use as a method of warfare.232 These complicating factors present a formidable challenge to occupying forces in establishing a secure environment and to human rights NGOs in reviewing the use of force. An analysis that considered the interface between human rights and humanitarian law before the International Court issued its advisory opinion in the Nuclear Weapons case233 suggested that since the concern of human rights supervisory mechanisms was the death or injury rather than its cause, the humanitarian lawyer will have to engage in intellectual gymnastics to apply international human rights to targeting issues.234 The judicial acknowledgment that international humanitarian law constitutes an integral, but separate, part of the right to life framework means that such machinations should not now be necessary. International humanitarian law has its own standards for assessing the legality of using lethal force, so that human rights advocates will have to become more comfortable with both the scope of that law and its application to conflict.235 The positive effect that human rights norms can bring to international humanitarian law in respect of targeting will be directly related to how successfully the emphasis on accountability accommodates the differences between the two normative frameworks. An important distinction between human rights law and humanitarian law in terms of controlling the use of force is that the former seeks review of every use of lethal force by agents of the state, while the latter is based on the premise that force will be used and humans intentionally killed. In practical terms, a human rights supervisory framework works to limit the development and use of a shoot-to-kill policy, whereas international humanitarian law is directed toward controlling how such a policy is implemented. These differences are reflected in the respective applications of the principle of proportionality. In the domestic context, the force used must be strictly proportionate to the aim to
Notwithstanding the ongoing military operations, the FALLUJA REPORT, supra note 226, at 13, highlights the law enforcement role of U.S. forces: [T]he presence of provocateurs in the crowd does not negate the responsibility of U.S. soldiers to prevent civilian casualties to the greatest extent possible, and to ensure that their response when carrying out law enforcement functions is proportionate and discriminate. 231 BASRA: CRIME AND SECURITY UNDER BRITISH OCCUPATION, 15 HUMAN RIGHTS WATCH, IRAQ, NO. 6 (E), June 2003, at 19, available at <http://www.hrw.org/reports/2003> (noting that by all accounts, the focus of coalition forces was on force protection, . . . . responding robustly to any use of weapons, while essentially ignoring other incidents of lawlessness and looting). 232 Compare Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, Art. I(5), S. TREATY DOC. NO. 21, 103d Cong. (1993), 32 ILM 800 (1993) (Each State Party undertakes not to use riot control agents as a method of warfare.), with id., Art. II(9)(d) (among purposes not prohibited by the Convention are [l]aw enforcement including domestic riot control purposes). 233 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226 ( July 8). 234 Hampson, supra note 224, at 127. 235 It has been noted that the Courts reasoning in the Nuclear Weapons Advisory Opinion cannot be generalized with regard to human rights law, as it was specifically directed toward the right to life. Thus, human rights treaties in general would not have to be interpreted in light of international humanitarian law. Frowein, supra note 202, at 12.
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be achieved.236 Under international humanitarian law, the use of force against valid targets such as combatants and civilians directly participating in hostilities is not directly governed by proportionality. Although the methods and means of using force are not unlimited, emphasis is placed on prohibiting superfluous injury or unnecessary suffering.237 In the context of an armed conflict, proportionality is used to assess the potential for collateral damage to uninvolved civilians and civilian objects.238 As a result, force under international humanitarian law presents a significantly different legal and moral challenge. Every human life remains precious, but assessing when the taking of life may be justified is rarely undertaken on a scale of one or two victims. This assessment must often be carried out by weighing the relative importance of protecting or destroying objects or achieving political objectives. The significance of this challenge emerges when an attempt is made to establish criteria for instituting a supervisory framework on the use of force in armed conflict. The human rights approach of automatically investigating every use of force by agents of the state is not feasible. Moreover, any system requiring that the state automatically investigate each use of force or account for all armaments that are expended is clearly not always practical. What, then, are the correct criteria? Is an investigation warranted when one, ten, or one hundred civilians are killed? Since the conduct of hostilities by its very nature often involves the wide-scale application of lethal force, not every death can or should be subject to the exhaustive review process normally associated with the application of peacetime human rights norms. These obstacles, however, do not mean that criteria cannot be established.239 Thus, those analyzing whether a killing is extralegal should first acknowledge what body of law the state or group using force is applying to the situation. Second, mistakes in targeting and the failure of weapons to hit their targets or operate properly should obviously trigger an investigation. Third, an element of accountability could be introduced by requiring authorities to explain the basis for an intentional killing that prima facie does not indicate that the target was lawful. Such an explanation could include confirmation of the criteria that are applied to the targeting of unprivileged belligerents or others who, on the basis of publicly available information, do not appear to be directly participating in hostilities. For example, asking authorities to establish how a leader is linked to the operations of a nonstate actor could contribute effectively to the accountability process. Finally, inquiries might be made when the state has used deadly force in a situation where it exercised sufficient control that detention and arrest of terrorists appeared feasible. This latter step might be especially appropriate in cases of a direct interface between domestic policing functions and an ongoing armed conflict.240 The public nature of the human rights accountability process is an effective tool in helping to ensure that a states use of force is justified. Yet the level of transparency sought in the human rights process may not be achievable in all instances of force in armed conflicts. National security concerns, such as the potential impact on ongoing operations and international relations, disclosure of the capabilities of weapons systems, and the need to protect intelligence assets, may adversely affect public reporting on the findings of any investigation.
McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 16061, para. 149 (1995). Protocol I, supra note 42, Art. 35(2). 238 Id., Art. 51(5)(b). 239 In calling for a process for analyzing the impact of targeting decisions, Sarah Sewall has suggested that a complete collateral damage assessment would include fully investigating serious incidents during the conflict and following up with a public postwar survey of the campaigns impact on civilians. That process would involve the integration of a civilian collateral damage assessment into the formal lessons-learned process. Sewall, supra note 186. The challenge would remain, however, of determining what would make an incident serious enough to warrant its inclusion in such an assessment. 240 However, as Hays Parks notes, there is no obligation to attempt to capture rather than attack an enemy in cases of armed conflict. Parks, supra note 108, at 7 n.6. Here, a distinction has to be made between making a policy choice of seeking to arrest an enemy combatant (perhaps for intelligence purposes) and the issue of the legal authority to use lethal force.
237 236
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Further, those concerns may also erode the usual level of institutional separation between the authorities using force and the investigatory bodies. Still, a worthwhile investigation can be conducted and an enhanced level of objectivity injected through the participation of persons from outside the chain of command or even the military. The accountability framework must simply reflect the universe within which the use of force is being applied. Finally, should the victims or their relatives be involved in any accountability process? Their involvement in the domestically focused human rights endeavor is undoubtedly rooted in the political responsibility and accountability of the state to all its citizens. The same sense of responsibility or accountability may not extend to foreign victims of the use of force.241 These factors, combined with the potential for any investigation to become politically charged by the issues that prompted the armed conflict in the first place, may ultimately operate to limit the involvement of victims in an accountability process. But challenges in establishing the scope and nature of such a process should not prevent the making of attempts to do so or to enhance the existing process. IX. CONCLUSION The intentional taking of human life is and should be an emotional issue, as humanity maintains the protection of the right to life as a fundamental tenet in both peace and war. Thus, any decision to take a life should be subjected to a clear normative framework and, where appropriate, the strictest scrutiny. However, the right to life is not absolute under the norms of either international human rights or humanitarian law. The maintenance of social order both internationally and domestically inevitably leads to conflict and, periodically, the necessity of exercising the right to self-defense and of acting in the defense of others. The organization of society into nation-states has directly affected the normative frameworks governing the use of lethal force. Since its inception, the state has held the primary responsibility of controlling violence within its borders. The degree of control that a state exercises internally because of its monopolization of violence has also allowed for a much more invasive process to regulate the use of force domestically than that available to regulate interstate armed conflict. Nowadays, however, nonstate actors have enhanced ability to engage in conflict on an international level. This reintroduction of a form of private war challenges the state-based international regime for the maintenance of order in new and significant ways. To enable international humanitarian law to regulate contemporary armed conflict effectively, it must set forth realistic rules governing the use of deadly force that reflect the levels of violence and the nature of the threat posed to society. At the same time, armed conflict does not occur in isolation. Society will still have to be governed according to human rights norms. The resulting interface between the two normative structures is most graphically represented in noninternational armed conflict, situations of occupation, and the contemporary war on terrorism. Both areas of law have important and constructive contributions to make so as to establish a secure environment for the enjoyment of fundamental rights. In particular, incorporation of human rights principles of accountability can have a positive impact on the regulation of the use of force during armed conflict. Given the close interface between these two normative frameworks in some types of armed conflict, their mechanisms of accountability will inevitably need to be reconciled; but systems of accountability developed to regulate the use of force domestically cannot simply be transferred to the international humanitarian law context. Consequently, both states and human rights supervisory bodies may have to readjust their understanding of the role human rights law can play in enhancing the accountability framework regarding the use of deadly force in armed conflict. No gaps in the effort to apply appropriate norms of humanity can be allowed.
241 This broader sense of responsibility appears unlikely to occur unless there develops a more global sense of community, such as the cosmopolitan patriotism suggested by FALK, supra note 12, at 14446.

Controlling The Use of Force - A Role For Human Rights

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CONTROLLING THE USE OF FORCE: A ROLE FOR HUMAN RIGHTS NORMS IN CONTEMPORARY ARMED CONFLICT

THE AMERICAN JOURNAL OF INTERNATIONAL LAW