Some Preliminary Thoughts For the 2008 Academic Year

    Since 11 September, 2001 there has been considerable turmoil among those studying the law governing armed conflicts. Much of that controversy has involved treatment of persons, groups and nations which might, in some fashion be affiliated with the mass murders at the World Trade Center in New York City. As time has elapsed since 9/11 there is some argument that the rule of law has again achieved the fore, or at least, that its utility has become more obvious to those in power.  Among the topics currently debated  are:

        1) the position of the United States that it may take military action under a "preemption" doctrine, even if the threat against it does not meet the tradition standards for justifying an armed attack under international law prior to September 11th;

        2) the related position of many other nations that international peace and security continues to require United Nations Security Council approval prior to an armed response to aggression, unless there is an imminent threat;

        3) treatment of persons captured in conflicts which the United States argues fall outside the traditional concepts and justifications for protection of prisoners of war, and the jurisdiction of federal courts to review that captivity;

        4) what constitutes illegal means of interrogation of persons captured in conflicts and the potential liability of persons involved in, or ordering, such interrogation;

        5) the rules governing belligerent occupation of the territory of a state attacked under the preemption doctrine and arguably without approval by the Security Council; and

        6) the role of the United Nations in resolving and ending belligerent occupation.

        In addition, definition of and military action against international terrorism, as well as prosecution of persons charged with terrorism may, and arguably should, implicate aspects of the law of war, including, inter alia, the definition of war crimes, crimes against humanity and genocide.

    Much of the debate is, of course, of long standing and revolves around a central question; what is the binding nature, if any, of international law? Consider the following:

 Geoffrey Wawro, Warfare And Society In Europe 1792-1914 p.78, Routledge (London, 2000).

       All these issues must be considered in this course. And yet, it is the firm belief of the author that the underlying principles developed for some hundreds of years to control, regulate and ameliorate the frightfulness of war, are just as applicable in the post-9/11 world. A good part of the student's thought and analysis should be devoted to those questions. Keep them in mind as you proceed through the chapters which follow.

    Since the attacks of 11 September, the United States has variously taken the position that it is engaged in a "Global War On Terror;"   that many of the protections applicable in an armed conflict do not, for various reasons apply to some opponents in that "war;"  that it was engaged in a conventional international armed conflict in Iraq in 2003 and that law governing military occupation impacted the conflict; that limitations of the law of war and treaties on means and methods of combat and treatment of non-combatants continue to apply; and that armed forces of the United States continue to enjoy the protection of international treaties protecting lawful combatants. Following the initial fighting in Iraq, as the regime crumbled, irregular and asymmetric combat emerged as the principle challenge to US occupation. The United States has variously characterized its opponents in that struggle as terrorists, irregulars, and illegal combatants. Much of the underlying legal basis for proper analysis of those positions is found within the basic question "What is war?"

    Cicero's argument that "inter bellum et pacem nihil est medium" was accepted as valid analysis by the first modern international lawyer, Hugo Grotius in his classic treatise De Jure Belli ac Pacis. It was still arguably valid in the middle of the Twentieth Century when the Chief of the Legal Department of the Soviet Ministry of Foreign Affairs wrote that "...existing international law does not recognize any 'intermediate status'." Grigory I. Tunkin, Co-existence And International Law, 95 Hague Recueil des Cours (1958).

    Professor Oppenheim defined war as:                                                          

L.F.L. Oppenheim, Vol II, quoted in British Manual Of Military Law, Part III at p.5, f.n.2.

    Another definition, for purposes of regulation, looks at armed conflict rather than war:                                                           

Tadij Jurisdiction Decision, International Criminal Tribunal for Former Yugoslavia (ICTY) Case No. IT-94-1-AR72, para 70.

    These definitions, however, were not unquestioned. As early as 1800, in Bas v. Tingy, the United States Supreme Court articulated arguments for recognition of a state of partial war. 

    A nice discussion of the international law principles underlying Bas may be found in Jules Lobel, Little Wars And The Constitution, 50 University Of Miami L. Rev. 61 at 66 (1995). As John Jay noted:                                                   

The Federalist No. 3. quoted in Louis Fisher, Military Tribunals And Presidential Power ( University Press of Kansas, 2005) at 20.

    In his recent popular work Carnage and Culture, Professor Hanson, states that:

Victor Davis Hanson, Carnage and Culture at p.213 (Anchor (New York, 2001). 

    Are the limited definitions satisfactory in the 21st century? Contrast them with Professors McDougal and Feliciano's argument that "it is...no new thought that this dichotomy is hardly a faithful reflection of the fluid and complex process of coercion in the contemporary world arena..." Myres McDougal and Florentino Feliciano, International Coercion And World Public Order; The General Principles Of The Law Of War, 67 Yale L.J. 771 (1958).

    Professor Hanson says:

Hanson, Id. at p.165. 

   The United States Congress has defined "war crimes" by U.S. personnel as including:

18 U.S.C. §2441. 

    Does §2441 constitute Congressional recognition that there is a condition of "war" lying somewhere outside Cicero, Tunkin and Oppenheim?

  In 1940 Llewellen Pfankuchen listed eight measures of redress short of war:

    A number of those measures are clearly banned by later accepted treaties or other legal developments, but all have been seen since World War II in various guises or under other names. An interesting example at the beginning of the last century was the "pacific blockade" by Great Britain, Germany and Italy against Venezuela in 1902-03. When the United States objected to the legality of a pacific blockade which adversely affected neutral's rights, the European powers established a wartime blockade without a declaration of war. The United States accepted that action as outside the Monroe Doctrine since no permanent acquisition of Venezuelan territory was intended. Instead, the European powers seized customs houses and collected tariffs to pay off the debts owed. 

    Authorities have held that a state of war exists, even where neither party involved claims that status. Thus, in Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham Steamship Company Limited, a U.K. court held that despite the statement of the Foreign Office "...that the current situation in China is indeterminate and anomalous and His Majesty's Government are not at present prepared to say that in their view a state of war exists," war might "break out without His Majesty's Government recognizing it."

     Earlier (1930's forward) analysts divided the law of war into jus ad bellum (the legality of using armed force to resolve a conflict) and jus in bello (control of actual hostilities and related activities).

ICRC publication International Humanitarian Law: Answers to Your Questions

    The concept is a relatively straightforward one; that a belligerent should not be able to avoid the strictures of the laws regulating armed conflict by claiming that the cause for which opposing participants are fighting is illegitimate. Thus, for example, German claims that Polish prisoners of war were unprotected by the 1929 Geneva Convention because their state had ceased to exist were extensively considered by the drafters of the Third Geneva Convention of 1949. Germany argued that the 1929 Convention did not apply to the treatment of either Soviet or Polish prisoners, because the former was not a signatory to the Convention, and the latter no longer existed as a state. In fact, Germany turned most Polish prisoners over to the SS for use as slave laborers. The Germans also refused to treat captured partisans and resistance fighters as POWs. The problems which arise from that refusal are still applicable and still current. See, Evan Wallach Afghanistan, Querin and Uchiyama: Does the Sauce Still Suit the Gander?

A Recent Example: The United States in Afghanistan

    On 11 September, 2001, thousands of civilians were murdered when armed conspirators hijacked three airliners and used them as flying bombs to attack the World Trade Center complex in New York City and the Pentagon in Washington, D.C. An additional attack was foiled by the passengers of a fourth hijacked aircraft but ended in the deaths of the passengers, crew and hijackers. The President of the United States immediately characterized those attacks as "an act of war,"¹ and shortly thereafter announced that "sufficient credible evidence" existed to seek the arrest of Osama bin Laden and members of his al Qaeda organization.²

    Treatment of prisoners of war is covered in more detail in Chapter 5.1. For the moment though, consider the position of the United States regarding the status of those captured persons. What must an American military lawyer consider in determining whether they are to be treated as protected by the laws of war?

     In pursuing this legal and theoretical analysis, however, it is well for the student and analyst to keep in mind the reality of combat well expressed by John Keegan:

John Keegan, Intelligence In War, Vantage, New York (2002) at 321.

    Perhaps some guidance may be found in the discussion of the purposes and uses of the laws of war in the following section. Consider those questions as you read it.

    The student first examining the subject often scoffs at the concept of a "law of war." Since the essence of the law is predictability, how can a legal regime affect what is, by its very nature, an inherently unpredictable series of events clouded by what Clausewitz called "the fog of war?" A lawyer's viewpoint was well stated regarding the essentially criminal nature of battlefield conduct:

Remarks by Alfred P. Rubin, panel on "Should the laws of war apply to terrorists?" The American Society of International Law, 1985. The military view, or at least the view of the American military, is fairly stated by retired Major General William L. Nash:

Sewell and Kaysen, Ed.s, The United States and The International Criminal Court, Nash, The Deployment of U.S. Armed Forces at p. 157, Rowman & Littlefield (Lanham, MD, 2000).

    The list above is not exhaustive, but it should provide the student new to the subject with considerable food for thought. This section can, however, close profitably, with a quote from John Keegan. It should give the reader something to consider about the application of morality to law, as well as law to war.

John Keegan, Intelligence In War, Vantage, New York (2002) at 346.

    While armed conflicts may exist on a sliding scale between peaceful relations and declared war, they are essentially of only two kinds; international conflicts and those not of an international character. The waters are, of course muddied, by the intervention of third parties in internal conflicts and the questions which arise as to whether the intervening parties have, by their acts, changed the nature of the conflict.

    The existence and increasing activity of international organizations prepared to engage in armed conflict only expands the possibilities. Sir Hersch Lauterpacht notes in the British Manual of Military Law (Part III) that:

British Manual, Part III at Paragraph 7.

    In addition, there is a considerable history of "private" wars and of groups (pirates and terrorists, for example) who engage in warlike acts without the privileges and immunities afforded to "state" combatants (keeping in mind that some rebel groups may straddle the status). 

    The common articles of those Geneva Conventions above cited provide that in armed conflicts not of an international character, certain fundamental humanitarian provisions will apply including non-discriminatory and humane treatment of persons taking no part in hostilities, and a total ban on murder of all kinds, mutilation, cruel treatment and torture, hostage taking, humiliating and degrading treatment, and trial without minimal judicial safeguards. They also mandate collection of and care for the sick and wounded.

The Resolution, 2 U.S. 19, 21 ((Fed. App.(Pa., 1781).

    There is always an intertwined question between the characterization of an armed conflict and that of the parties involved. In the Prize Cases the Supreme Court noted that when rebels "occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents and their contest a war." The Court's definition is not that far off from the Article I of the 1933 Montevideo Conference on Rights and Duties of States which requires as the qualifications of statehood: (a) a permanent population, (b) a defined territory, (c) a government and (d) capacity to enter into relations with other states.

    When combatants meet those criteria is, of course, often a matter of international disagreement. That disagreement is only heightened by conflicts over decolonialization and ethnic rivalries.

Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2^nd Cir, 1995)(citations omitted).

    Clearly, not only an armed conflict, but a state of war, can exist without a formal declaration. (See, e.g. President Franklin Roosevelt's speech to the U.S. Congress following the Japanese attack on the naval base at Pearl Harbor). The more interesting questions involve how and when relationships pass from a state of peace to something other than peace, and whether that and when that status of belligerency gives rise to international rights and obligations.

Nicaragua v US ¶195, International Court of Justice (1986).

    Note both the legal analysis of causation, and of the preexistence of armed conflict reflected in President Wilson's 1917 request to the United States Congress for a declaration of war against Germany.

Woodrow Wilson, War Message To Congress, 2 April, 1917.

    Compare that analysis with Hitler's statement to his military leadership before the 1939 German invasion of Poland:

    Mosley, Leonard. On Borrowed Time, How World War II Began. Random House (New York, 1973) at 373

    In The Prize Cases, the U.S. Supreme Court dealt with a number of Civil War blockade runners, who challenged the legality of that blockade in an undeclared war,  and its effect on neutral nations and their vessels. In affirming the legality of the blockade, the Court noted:

    Article 1 of the Third Hague Convention of 1907 provides that "The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war." In light of that requirement, consider the Japanese Government's explanation in a report submitted by the post World War Two Japanese cabinet:

Quoted in Edward Behr, Hirohito Behind The Myth, at p. 252, Villard Books (New York, 1989) (Emphasis added).

      A nice discussion of whether and how a war begins, in the context of the War Powers Act and NATO intervention in Kosevo, may be found in Campbell v. Clinton, 203 F.3rd 19 (2000).

A Recent Example: The United States in Iraq

        Throughout 2002 the United States demanded that the Iraqi regime under Saddam Hussein take action to comply with various Security Council resolutions arising from Iraq's 1990 invasion of Kuwait, and resulting sanctions for non-compliance with U.N. directives.¹  Following repeated unsuccessful attempts by the United States to obtain a Security Council resolution authorizing immediate use of force ² , the United States, in conjunction with certain allies, chiefly the U.K. and Australia, imposed a 48-hour deadline for Hussein and his sons to leave Iraq on March 19, 2003.³  Immediately thereafter, coalition forces commenced air attacks.⁴

    The United States justified its actions as the conflict commenced:

Our nation enters this conflict reluctantly -- yet, our purpose is sure. The people of the United States and our friends and allies will not live at the mercy of an outlaw regime that threatens the peace with weapons of mass murder.5

    For further discussion of the means and methods of warfare used, treatment of prisoners of war, occupation of territory issues, status of continuing combatants, and potential war crimes trials, see appropriate chapters of this text.

    What then are the legal effects of war? The informed lay person might be forgiven in thinking that if any obligations of law spring from what Rubin calls "acts which are ordinarily criminal by nature," they must be of very limited scope. In fact those limitations, obligations and liabilities are broad, covering both national and individual conduct, and with considerable application even within the civil context.

    Take, for example, Navios Corporation v The Ulysses II, 161 F. Supp. 932 (D. Md. 1958), in which contractual liability under a charter depended on interpretation of a contractual clause providing that "If war is declared against any present NATO countries, ... Owners or Charterers have the right to cancel this charter party upon completion of that particular voyage vessel is engaged upon." Following the seizure by Great Britain and France of the Suez Canal from Egypt in 1956, liability under the charter depended upon determination of whether "war" had been "declared" by Egypt.

    In In Re Al Fin 1970 Chancery 160, the U.K. Patents Act provided for extension of a patent if the court was satisfied the patentee had suffered damages by reason of hostilities between Her Majesty and any foreign state. Under the facts presented, the question was whether the Korean conflict between 1950 and 1954 rose to the necessary level. Note the Foreign Office's careful limitations and the holding of the court.

    In an era of globalization, cross border trading and ownership is closer to the rule than the exception. What happens when a conflict involves corporations with substantial ties to multiple belligerents?  One seminal analysis may be found in Lord Parker's opinion in Daimler v Continental Tyre. He pointed out that:

    Might it be useful to a government to declare war in order to obtain domestic powers? Consider the discussion in Korematsu of domestic internment  by the United States of Japanese-American citizens in 1942. In the Burmah Oil Case Lord Reid discusses the effects of war on the domestic powers of the executive. Might it be useful from the government's viewpoint, to declare war in order to obtain those powers?

    From the following proclamation issued by President Harry Truman you may deduce certain legal advantages obtained by the government of the United States from the existence of hostilities:

Proclamation No. 2714, 12 Fed. Reg. 1 (1946).

    There are two underlying views on the legitimacy of use of armed force to settle international disputes. The restrictive approach is based on interpretation of the principles underlying Article 2(4) of the United Nations Charter which provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

  Its proponents claim that section was written with the view of abolishing war. The qualified prohibition analysis is perhaps a more realistic view, in light of state activity since the Charter came into force. It is based on the plain meaning section of 2(4). Proponents argue that:

Those propounding the broader find support in Article 51 which states:

    Consider then, General Assembly Resolution 2625, which states, in part, certain principles which the ICJ in Nicaragua v US, ¶191, found constitute customary international law:

    The two views spill over though, into application of Article 51 to the traditional right of nations to use armed force in self-defense.

    Article 51 of the Charter continues the customary right of self-defense, at least until the Security Council has had time to act. The most commonly cited exposition of that right (self-defense is "confined to cases in which the necessity of that self- defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.") is in a letter written in 1841 by Secretary of State Daniel Webster in The Caroline incident. The doctrine has its roots in the jus ad bellum tradition above discussed in Section 1.1 ("Fear with respect to a neighboring power is not a sufficient cause. For...self-defense to be lawful it must be necessary; and it is not necessary unless we are certain, not only regarding the power of our neighbor, but also regarding his intention; the degree of certainty which is required is that which is accepted in morals." Hugo Grotius, The Law of War and Peace, Chap. 22, V, 1. "That the possibility of being attacked confers the right to attack is abhorrent to every principle of equity. Human life exists under such conditions that complete security is never guaranteed to us." Ibid. Bk. II, Chap. 1, XVII.) It is considerably complicated by mutual defense treaties, and the question of their applicability. In a convention such as the NATO Treaty (German language version), an attack on one member is treated as an attack on all. The potential for unintended consequences is self-evident. 

Nicaragua v US ¶176.

    The argument has recently been again made that the