International Law of Armed Conflict and Combatting Terrorism - Module 1 of 5
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Module 1: International Law of Armed Conflict and Combatting Terrorism
Jus in bello is
the international law that governs the way armed conflict proceeds. Latin for
“law in war”, jus in bello consists of rules relating to proper and
improper kinds of weapons and military tactics, and rules relating to the
treatment of prisoners of war and civilians.[1]
The United
Nations Charter doesn’t make any mention of terrorists or how terrorism relates
to armed conflict. The United Nations Charter prohibits states from using force
in international relations “against the territorial integrity or political
independence” of other countries.[2] Additionally, Article 51 of the UN
Charter permits the use of force in self-defense only “if an armed attack
occurs.”[3]
Prior to
the attacks of September 11, 2001, it wasn’t clear how a state could combat
terrorism under the laws of war. For example, would a state have to wait to
absorb an armed attack before it could defend itself?[4] How should terrorists be captured and treated
when captured? Finally, how can a nation involved in an armed conflict abroad
distinguish between terrorist combatants and ordinary civilians? September 11,
2001, ushered in a new approach to counter-terrorism in armed conflict.
In this module, we’ll learn about the sources of international law of armed conflict, legal principles under-girding the international law of armed conflict, as well as the legal ramifications of combating terrorism. Finally, we will approach how the 9/11 attacks changed this area of law and how the United States combats terrorists worldwide.
Sources of International Law of Armed Conflict
The law of
armed conflict, also known as international humanitarian law, governs
relationships between states during armed conflicts. Its goal is to reduce the
suffering, the loss and damage caused by war as much as possible.
The two
primary sources of law for the international law of armed conflict are
customary international law and treaty law. Customary international law is the unwritten law that governs
relationships between states and comes from a general and consistent practice
states follow because of a sense of obligation.[5] For example, for centuries, states have
agreed to a universal ban on poisoning as a form of warfare. Though there was
never a formal agreement that banned this practice, since ancient times,
military on both sides of a conflict would issue orders not to poison wells, as
much for their benefit as for that of the civilian population. This idea was
extended to banning poison gas by formal agreements after World War I.[6]
The second source of international law are treaties. A treaty is an international agreement reached by states or international organizations. A treaty is like a contract because it intends to create rights and obligations enforceable under international law. Examples of notable treaties include the 1949 Geneva Conventions, which protect wounded and infirm soldiers and medical personnel and ensures humane treatment of prisoners of war without discrimination founded on race, color, sex, religion or faith, birth or wealth.[7]
Foundational Principles of International Law of Armed Conflict
Four key
principles form the foundations of the international law of armed conflict:
necessity, proportionality, distinction, and humanity.
The first
principle is necessity,
which authorizes all lawful uses of military force to defeat an enemy.[8] In armed conflicts, deaths are inevitable
and using military force contributes to a death toll. As such, military force
that is intended to and results in the terrorist deaths can be lawful under the
principle of necessity. However, the principle of necessity is limited and not
all methods and means of fighting are permissible. Killing must be avoided if
the enemy can instead be captured, detained, and tried.
The
principle of proportionality requires that parties attacking military
targets take “all reasonable precautions to avoid losses of civilian lives” and
ensure that unintended civilian casualties are “not excessive in relation to
the concrete and direct military advantage anticipated.”[9] Proportionality does not prohibit civilian
casualties and it permits them so long as the benefit to the attacker can be
justified in relation to these deaths. The more valuable it would be to
the attacker to eliminate the threat posed by the target, the more civilian
casualties are permitted under proportionality. As long as the attacker
attempts to minimize civilian casualties and the attack is not intended to kill
civilians but rather to kill the enemy and thereby obtain an advantage greater
than the expected loss of civilian life, the use of military force is
proportional.
The third
principle is distinction.
It sets out that the only legitimate targets are enemy fighters and military
objects, and categorically prohibits the deliberate targeting of civilians and
civilian objects.[10] Distinction does not absolutely
prohibit civilian casualties: it merely prohibits intentional killing of
civilians while allowing attacks that are otherwise necessary and proportional
and that target fighters and military objects.
Finally, the principle of humanity requires that a military force should conduct itself with the compassion, fidelity, mercy, and justice befitting members of the military profession.[11] The military force should not cause unnecessary suffering. Humanity requires that a military force combating terrorists refrain from using prohibited methods and means of killing them and accept surrenders when offered.
The Role of the September 11th Attacks
Immediately
after the 9/11 terrorist attacks, the international law of armed conflict
started to evolve. First, the United Nations Security Council issued Resolution
1368, which recognized that the September 11th terrorist
attacks threatened international peace and security and triggered the
individual right of self-defense by the United States against the perpetrators
of the attack, as well as the collective right and responsibility of other
nations to assist the United States.[12]
Second, the
Security Council passed Resolution 1377, which labelled terrorists an enemy of
all humankind and called on all states to engage in counter-terrorism against
them and to engage against those who finance, plan, prepare, and support
terrorists in any way.[13] The United Nations recognized that
terrorists could, by attacking a state, become the lawful object of military
force in self-defense.
The North
Atlantic Treaty Organization pronounced the 9/11 attack to be an armed attack
within the meaning of the NATO Charter, which provides that an attack on any
NATO member is an attack on all NATO members. So, NATO recognized the right of
the United States to use military force in self-defense against the
perpetrators while authorizing all its members to do the same.[14]
Most
importantly, a week after the attacks, the United States Congress passed a
joint resolution for an authorization for the use of military force, which
posited that the duty to protect American citizens made it necessary for the
United States to use military force against all “organizations and persons”
whom the President determines responsible for the 9/11 attacks.[15] The President thus was given the right
and the duty, as a matter of self-defense, to attack terrorists.
With the UN
resolutions and Authorization in hand, the U.S. and its allies launched a
global “war on terror,” targeting terrorists without warning wherever they
could be found and for as long as it took to defeat them.
The use of military force in counter-terrorism has been applied on the ground and through the air. In Iraq, Afghanistan, and elsewhere, U.S. ground combat operations against al-Qaeda and ISIS, fought with conventional and special operations forces, have killed and captured tens of thousands of terrorists and reduced the territories they control.
The Global War on Terror
The War on
Terror continues to this day and United States ground combat forces continue to
battle global terrorist organizations in over sixty countries in the Middle
East, Africa, and Asia. This has now become the longest war in American
history. The death toll for American military personnel in Afghanistan
approached 2,500 and more than 4,500 U.S. military deaths were incurred in the
Iraq War, which was portrayed by some in government and viewed by most
Americans as an extension of the war on terror. Furthermore, several thousand
American civilian contractors also have been killed in the two wars, bringing
the total death toll near 10,000.[16]
In its
approach to combat terrorism, the United States has defined and classified
people into different categories. First, there are combatants, who are those who abandon their protected
status as civilians by joining the armed forces of a state or affiliating with
a terrorist group, to engage in armed hostilities against an opposing party.
The military can deliberately target and kill combatants.
Within the
category of combatants, there are lawful and unlawful combatants. “Lawful combatants” are members of the armed
forces of states who wear uniforms or distinctive insignia, carry weapons
openly during armed attacks, are under the command of responsible superiors,
and adhere to the law of armed conflict.[17] By wearing uniforms or distinctive
insignia, lawful combatants allow all parties to know who is, and is not, a
target. In exchange for marking himself to the enemy as a person who may
lawfully be targeted and killed so long as attacks against him are otherwise
lawful, a combatant earns combatant immunity. This immunity shields the
combatant from prosecution for engaging in otherwise lawful attacks.[18]
On the other
hand, “unlawful combatants” are people who engage in hostilities without
meeting the criteria for combatant immunity. An unlawful combatant doesn’t wear
a uniform or distinctive insignia, doesn’t openly carry weapons, and obey the
law of armed conflict.[19] Unlike a lawful combatant who can’t be
punished judicially for taking part in an armed conflict, an unlawful combatant
does not have the legal right to participate in hostilities and can be
prosecuted for doing so.[20]
The second
category of people engaged in the War on Terror are noncombatant
civilians. A citizen of a
foreign country is presumed to be a noncombatant civilian unless he is a member
of that nation’s armed forces, undertakes direct participation in hostilities,
or affiliates with a terrorist group as a fighter or supporter.
Noncombatant
civilians aren’t just citizens of a country. Other types of noncombatant
civilians include the following:
· civilian populations under
military occupation and any other persons who find themselves under the
authority of a party to an armed conflict;
· refugees;
· medical, humanitarian, and
religious personnel;
· workers affiliated with
international and nongovernmental organizations such as the UN, the Red Cross,
and Doctors Without Borders;
· relief workers; and
· journalists.
A noncombatant civilian becomes a combatant when she undertakes “direct participation in hostilities.”[21] This includes offering material or moral support to combatants. As a result, a person who plans or finances terrorist activity can be considered a noncombatant who has directly participated in hostilities and who has therefore become a combatant.[22] Such a person loses civilian immunity and is subject to targeting at all times until she is killed or captured, or permanently quits taking part in terrorism activities. If captured, a noncombatant who has undertaken direct participation in hostilities can be prosecuted for her activities.
The War
on Terror and International Law of Armed Conflict
The war on
terror has affected the international law of armed conflict in several ways.
The first issue that has arisen is that the principle of distinction has become
more difficult to comply with. Traditionally, distinguishing combatants from
civilians was easy, as soldiers wore military uniforms, clearly marking
themselves as combatants by their membership in armed forces and were thus
legitimate targets. On the other hand, civilians wore clothing marking
themselves as noncombatants, and were thus immune from targeting. In the war on
terror, terrorists don’t always wear clothing or insignias that distinguish
them from civilians. Instead, they seek to blend in with a civilian population.
As a result, it’s become tougher for a state in an armed conflict to
distinguish, identify, and attack terrorists while sparing noncombatant
civilians.
Second, The
War on Terror has fundamentally changed how war
is fought. For example, “targeted killings”, a process wherein a person is
targeted and killed based on a determination that the person is a member of an
enemy armed force, are conducted more often than ever. The most well-known
targeted killing occurred on May 2, 2011, when U.S. Navy SEALS executed an
operation in Pakistan, killing Osama bin Laden, the mastermind behind the
September 11th attacks. The United States military acquired
intelligence about bin Laden’s whereabouts and circumstances from terrorists it
had previously detained and interrogated, and then used that information to
locate and kill bin Laden.[23]
Another way
the U.S. military conducts targeted killings is to use unmanned aerial vehicles
(often referred to as “drones”) armed with lethal missiles to find and
eliminate terrorists. Operated by the Air Force as well as by the Central
Intelligence Agency, drones have successfully identified and eliminated almost
four thousand people.[24] The legality of targeted killings has been hotly debated.
Critics of the use of drones
note that those targeted are unable to surrender, that their use is capital
punishment of a terrorist suspect without affording him any due process.
Another criticism commonly levied is that terrorists killed in this manner
cannot be interrogated to learn information that could be used to prevent
future terrorist attacks.
This debate
has played itself out in courts, and recent judicial decisions have upheld the
legality of targeted killing of members of terrorist organizations. The 2014
case of Al-Aulaqi
v. Panetta is the among
most important of these.[25] The U.S. government targeted and killed
U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman
Al-Aulaqi in Yemen in 2011, using drone strikes. The ACLU brought the lawsuit
on behalf of the victims’ families on due process grounds, arguing that the
U.S. government didn’t take all possible steps to avoid harming civilian
bystanders. The federal court for the District of Columbia dismissed the case
and held that the President can wage war in self-defense, and that it can be
necessary to identify, target and kill a U.S. citizen who is a member of a
terrorist organization.
Third, the
War on Terror has fundamentally altered the timing and geographic scope of war.
Under traditional international law of armed conflict, war began when a nation
declared war against another and ended when belligerent parties signed a peace
treaty. Furthermore, under the traditional laws, the geographic scope of armed
conflicts was straightforward, as belligerent nations moved their military
forces into contact with their opponents and battles occurred along various
fronts.
Now,
countries face threats from terrorist groups that are dispersed across the
globe, from Afghanistan to Somalia, and from Canada to France. As a result,
it’s harder than ever to differentiate a zone of peace from the battlefield.
It’s also impossible to define the “start” and “end” of war in the War on
Terror. A commonly-employed strategy by a terrorist cell is to launch surprise
attacks before melting back into the civilian populations that shelter them.
After an attack has been successfully launched and the United States military
responds and kills members of a terrorist cell, it’s unclear whether that means
that the war has “ended” because the terror cell may attack again and because
the terror cell doesn’t sign a treaty with the United States to end
hostilities.
Another
issue is that one group may be targeted and dismantled militarily, but another
one may then take its place. For example, the U.S. military effectively
diminished al-Qaeda, the group responsible for the September 11th terrorist attacks, through years of
operations and military tactics. However, al-Qaeda’s destruction didn’t signal
the end of the war on terror as groups such as the Islamic State of Iraq and
Syria, known as ISIS, and the al-Nusra Front, have assumed the terrorism
mantle.
In our second module, we will discuss the capture and detention of terrorist suspects, and will look at detainee rights, detention conditions, detention duration and other judicial aspects of detention.
[1] What are Jus ad Bellum and Jus in Bello?, International Committee of the Red Cross, (Jan. 22, 2015), https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0.
[4] William C. Bradford, “The Duty to Defend Them”: A Natural Legal Justification for the Bush Doctrine of Preventive War, 79 Notre Dame L. Rev. 1365, 1366-67 (2004).
[6] George Bunn, Banning Poison Gas and Germ Warfare: Should the United States Agree?, 1969 Wis. L. Rev. 375, 376 (1969).
[9] Int’l Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949 at 38, 42 (2010), https://www.icrc.org/eng/assets/files/other/icrc_002_0321.pdf [hereinafter Protocol Additional to the Geneva Conventions].
[10] Id. at 37.
[14] Press Release, North Atlantic Council (Sept. 12, 2001), https://www.nato.int/docu/pr/2001/p01-124e.htm.
[15] Authorization for the Use of Military Force Against Those Responsible for the Recent Attacks Launched Against the United States, Sept. 18, 2001, Pub. L. 107-40, 115 Stat. 224 (2001).
[16] Brian Michael Jenkins, Fifteen Years on, Where are We in the “War on Terror”?, The Rand Blog, https://www.rand.org/blog/2016/09/fifteen-years-on-where-are-we-in-the-war-on-terror.html.
[17] Int’l Committee of the Red Cross, 3 Geneva Convention Relative to the Treatment of Prisoners of War 44 (1960),
[20] Protocol Additional to the Geneva Conventions, supra note 9, at 32.
[21] Id. at 37; see also Nils Melzer, Int’l Committee of the Red Cross,Interpretive Guidance on the Direct Participation in Hostilities Under International Humanitarian Law at 12 (2009).
[22] United Nations Convention on the Safety of United Nations (UN) and Associated Personnel Enters Into Force, 1999 ARMY LAWYER 21, 27.
[25] Al-Aulaqi v. Panetta, 35 F.Supp.3d 56 (D.C. Dist. 2014)