Is humanitarian intervention legal?? Using this week’s class material on the settlement of disputes and use of force, Reflect on the legality of

Terrorism and Political Violence

ISSN: 0954-6553 (Print) 1556-1836 (Online) Journal homepage: https://www.tandfonline.com/loi/ftpv20

Interesting Times for International Humanitarian Law: Challenges from the ‘War on Terror’

GABOR RONA

To cite this article: GABOR RONA (2005) Interesting Times for International Humanitarian Law: Challenges from the ‘War on Terror’ , Terrorism and Political Violence, 17:1-2, 157-173, DOI: 10.1080/09546550590520645

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Published online: 25 Jan 2007.

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Terrorism and Political Violence, 17:157–173, 2005 Copyright � Taylor & Francis Inc. ISSN: 0954-6553 print DOI: 10.1080/09546550590520645

Interesting Times for International Humanitarian Law: Challenges from the ‘War on Terror’*

GABOR RONA

International Committee of the Red Cross

‘May you live in interesting times’ is reputed to be an old Chinese curse. To call a curse what at first blush appears to be a blessing is to emphasize the risks over the opportunities inherent in living in interesting times. These are, indeed, interesting times for international humanitarian law, otherwise known as the law of armed con- flict.1 Whether history will reward the pessimist or the optimist is, of course, uncer- tain. Still, there are some indications of how the pressures being brought to bear on humanitarian law by the war on terror will resolve. The aim of this article is to explore some of those indications and, if it is not too ambitious, to possibly influence the debate.

These are interesting times not only for humanitarian law, but also for inter- national law in general. Recent events have generated renewed debate on the long- standing question: ‘Is international law really law?’ The unique position of the United States in world affairs today, coupled with its apparently unique positions on so many current issues affecting international law, has been cited as proof that power is, indeed, the constitution of international law.2 The purpose of this obser- vation is not to open debate on that loaded question, but only to point out that with regard to living in interesting times, humanitarian law is in good company.

The Accusation Against Humanitarian Law and the Reply

The question has been posed: Is humanitarian law passe, or at least stale and in need of revision – inadequate to deal with the demands of modern day terrorism and the efforts to combat it? Several analysts have attempted to make this case, attributing specific shortcomings to the law of armed conflict. Some of the criticisms merely mis- represent or misapply humanitarian law, while others correctly state its substance but fail to grasp the ramifications of suggested changes. The section of this article entitled ‘In Defense of Humanitarian Law’ addresses some of the most significant of these allegations and observations. The response to them requires familiarity not only with the substance, but also with the scope of application of humanitarian law in relation to other branches of relevant domestic and international law. The sec- tion of this article entitled ‘The scope of Application of Humanitarian Law’ addresses the scope of application criteria.

�Reprinted. Courtesy of the Fletcher Forum of World Affairs. Address correspondence to Gabor Rona, E-mail: [email protected]

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As concerns the scope of application, it must first be understood:

. that humanitarian law applies only in armed conflict;

. that other legal regimes such as domestic and international criminal and human rights law also apply, but only to a limited extent, during armed conflict;3

. that terrorism and the war on terror are sometimes manifested in armed conflict, other times not; and

. that there are good reasons involving the global balance between state and per- sonal security, human rights and civil liberties for this division of legal labor between humanitarian law and other laws.

As for substance, the criticism of humanitarian law seems to come in two forms that are at once related and contradictory: that applicable law is lacking and that applicable law exists but is a hindrance. First, there is the complaint that humani- tarian law has failed to keep up with the changing nature of armed conflict, always fighting the last war rather than the next one. Indeed, though the first Geneva Con- vention dates from 1864,4 it was only in response to World War I, in which massive numbers of prisoners were subjected to unspeakable abuse, that the Geneva Conven- tion for the protection of prisoners of war came into being. Likewise, there was no Geneva Convention for the protection of civilians in armed conflict until after World War II, in which civilians were the main victims and were subjected to mass extermi- nation, indiscriminate attack, deportation and hostage-taking.

We may concede these facts. We may even concede that humanitarian law, as most recently codified in the Geneva Conventions of 19495 and their Additional Pro- tocols of 1977,6 does not anticipate armed conflict in the context of modern terrorism (that is, between a state and one or more transnational armed groups). But to con- clude that humanitarian law cannot accommodate terrorism and the efforts to com- bat it when these phenomena amount to armed conflict (the very circumstance that humanitarian law is meant to address) would be wrong.

A second criticism suggests that existing law is a hindrance and proposes that when law and material reality collide, it is law that must give way.7 This attractive observation must be parsed. It implies that existing law has been ‘overtaken’ by facts on the ground and, therefore, must be revoked or ignored. But law does not give way only because it is overwhelmed by the frequency or intractability of violations. Were that the case, everything from illicit drug use to tax evasion to (some might argue) murder would be decriminalized. Rather, it is the shift from opprobrium to accept- ance that places prohibitions at risk. Violations may be frequent – even rampant – but the burden remains on those who challenge the wisdom and sufficiency of existing norms to prove their obsolescence.

Let us also bear in mind that the ‘collision course’ between law and material reality takes place on a two-way street. Law can be said to give way either when it is moving from prohibition to permission, or vice versa. To fill a legal void when conduct shifts from tolerated to intolerable (whether it is reducing the blood-alcohol level at which driving becomes a crime or defining the crime of genocide) is also a form of collision.

While there has been plenty of rhetoric suggesting the inadequacies of humani- tarian law in the context of terrorism, I hope to show that existing norms of humani- tarian law are appropriate and sufficient when the war on terror amounts to armed conflict and that the material reality of the war on terror has not collided with humanitarian law.

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Returning to the scope of application question, I hope also to show that it is both correct and good that humanitarian law does not accommodate terrorism and the war on terror when those phenomena do not amount to armed conflict. Why is this a good thing? The reasons for respecting the existing limits of application of humanitarian law become clear upon a closer look at its function and substance.

The aims of humanitarian law are humanitarian, namely, to minimize unnecess- ary suffering by regulating the conduct of hostilities and the treatment of persons in the power of the enemy. But humanitarian law is a compromise. In return for these protections, humanitarian law elevates the essence of war – killing and detaining people without trial – into a right, if only for persons designated as ‘privileged com- batants’, such as soldiers in an army. Those who take part in hostilities without such a privilege are criminals subject to prosecution and punishment, but they do not thereby forfeit whatever rights they may enjoy under humanitarian, human rights or criminal law. Therefore, fiddling with the boundaries or, more accurately, with the overlap between humanitarian law and other legal regimes can have profound, long-term and decidedly ‘un-humanitarian’ consequences on the delicate balance between state and personal security, human rights and civil liberties.8

In short, humanitarian law is quite at home with the war on terror when it amounts to armed conflict. When the war on terror does not meet the criteria for armed conflict, it is not that humanitarian law is inadequate, but rather that its application is inappropriate.

The Scope of Application of Humanitarian Law

What is the scope of application of humanitarian law to the war on terror? There is no evidence of any lex specialis9 for wars on terror within the lex specialis of humani- tarian law. That is, no rule of conventional (i.e., treaty based) or customary inter- national law addresses the conditions of application of humanitarian law, especially with respect to the war on terror. Humanitarian law applies, as a general matter, when the Geneva Conventions (GCs) and their Additional Protocols (APs) say it applies, namely, in the event of armed conflict.10 The conventions and proto- cols cover and distinguish between two categories of armed conflict: international armed conflict and internal, or non-international, armed conflict.11

The International Humanitarian Law of International Armed Conflict

The rules of humanitarian law applicable to international armed conflict are contained in the four Geneva Conventions (GCs I-IV) of 1949 and their Additional Protocol I (AP I) of 1977. The scope of application of these rules is found in Com- mon Article 2 (CA 2) to the four GCs.12 The International Committee of the Red Cross (ICRC) Commentary13 to CA 2 further clarifies that ‘any difference arising between two States and leading to the intervention of armed forces . . . is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place’.14

An international armed conflict is one in which two or more states are parties to the conflict. Armed conflicts that fall outside of this category are those in which a state is engaged in conflict with a transnational armed group whose actions cannot be attributed to a state. To avoid confusion with a term whose use connotes state

160 G. Rona

action, it would be better to speak of this type of armed conflict as ‘interstate’ or ‘transnational’ rather than ‘international’.

The International Humanitarian Law of Non-International Armed Conflict

Non-international armed conflict has historically been thought of as involving rebels within a state against the state or against other rebels. The rules applicable to non- international armed conflict are found in Common Article 3 (CA 3)15 to the GCs and in AP II. The scope of application of these rules is also found in CA 3 and in Article 1 of AP II.16 The ICRC Commentary to Article 3 provides the following negotiating history of criteria to determine the scope of application. These were rejected from the final text, but are deemed by the Commentary to remain relevant to determining the existence of a non-international armed conflict:

What is meant by ‘armed conflict not of an international character’? . . . It was suggested that the term ‘conflict’ should be defined or, which would come to the same thing, that a certain number of conditions for the appli- cation of the Convention should be enumerated. The idea was finally abandoned – wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows:

1. That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Conven- tion.

2. That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

3. (a) That the de jure Government has recognized the insurgents as belligerents; or (b) that it has claimed for itself the rights of a belligerent; or (c) that it has accorded the insurgents recognition as belligerents for the purpose

only of the present Convention; or (d) that the dispute has been admitted to the agenda of the Security Council or the

General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.

4. (a) That the insurgents have an organization purporting to have the characteris- tics of a State.

(b) that the insurgent civil authority exercises de facto authority over persons within determinate territory.

(c) that the armed forces act under the direction of the organized civil authority and are prepared to observe the ordinary laws of war. (d) that the insurgent civil authority agrees to be bound by the provisions of the Convention.

The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection. Does this mean that Article 3 is not applicable

161 Interesting Times for Humanitarian Law

in cases where armed strife breaks out in a country, but does not fulfill any of the above conditions (which are not obligatory and are only men- tioned as an indication)? We do not subscribe to this view.17

While application of the international humanitarian law of non-international armed conflict to the war on terror cannot be ruled out, it is, admittedly, not an elegant fit. We can dismiss AP II from having any bearing on terrorist acts or on the war on terror because its application requires control of the high contracting party’s territory by an organized armed group (Article 1.1). If the state that is a party to the conflict is not a party to AP II (for example, the United States), or if the orga- nized armed group controls no territory, then AP II does not apply.

Application of CA 3, on the other hand, does not require territorial control. What is more, the GCs enjoy virtually universal adherence. Still, humanitarian law cannot be applied to any situation until the following criteria are addressed.

Specific Criteria Applicable to Non-International Armed Conflict

The following criteria apply to all determinations of armed conflict, but are described below with specific reference to the law of non-international armed conflict.

Identification of Parties (Ratione Personae) The essential humanitarian function of humanitarian law is carried out through the parties to the conflict. They have rights and responsibilities. There can be no humanitarian law conflict without identifiable parties.

‘Terror’ or ‘terrorism’ cannot be a party to the conflict. As a result, a war on terror cannot be a humanitarian law event. It has been suggested that wars against proper nouns (e.g., Germany and Japan) have advantages over those against common nouns (e.g., crime, poverty, terrorism), since proper nouns can surrender and promise not to do it again. Humanitarian law is not concerned with the entitlement to engage in hos- tilities or the promise not to do so again (the ‘jus ad bellum’). Rather, it concerns the conduct of hostilities and the treatment of persons in the power of the enemy (the ‘jus in bello’). But there is still a strong connection to humanitarian law in this observation. The concept of a ‘party’ suggests a minimum level of organization required to enable the entity to carry out the obligations of law.18 There can be no assessment of rights and responsibilities under humanitarian law in a war without identifiable parties.

A terrorist group can conceivably be a party to an armed conflict and a subject of humanitarian law, but the lack of commonly accepted definitions is a hurdle. What exactly is terrorism? What is a terrorist act? Does terrorism include state actors? How is terrorism distinguished from ‘mere’ criminality? How has the international community’s reaction to terrorism differed from its treatment of mere criminality; from its traditional treatment of international and non-international armed conflict?

There are numerous conventions and other authorities that treat these questions, but none provides a definition of ‘terrorism’ or ‘terrorist acts’.19

Negotiations on a Comprehensive Convention on International Terrorism20 are proceeding, but with considerable difficulty, in no small part due to an inability to reach agreement on the definition of terrorism. Terrorism is not a legal notion.21This very fact indicates the difficulty, if not impossibility, of determining how terrorism and responses to it may be identified historically or defined within a legal regime. For example, when the United States in 1998 was still engaged in the

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negotiations to establish a permanent International Criminal Court in Rome, it took a position against inclusion of terrorism in the court’s statute on the ground that a definition was not achievable. Without international consensus on these questions, how can one determine, for purposes of assigning legal consequences, who are the parties to the war on terror and which branch, if either, of humani- tarian law should apply?22

We are all now familiar with the refrain that one man’s terrorist is another man’s freedom fighter. The need for criteria to distinguish terrorists from freedom fighters is more than rhetorical. It may be critical to the determination of whether humani- tarian law can apply, and if so, whether it is the rules of international armed conflict or those of non-international armed conflict that will govern. The reason is simply that hostilities directed against a government and undertaken by a belligerent group seeking self-determination may qualify as an international armed conflict under AP I, while the same conduct of a group with different aims will not.23

This does not, of course, mean that humanitarian law cannot apply to the conduct of persons responsible for the 11 September attacks.24 On the other hand, the attacks do not, per force, amount to armed conflict which would trigger the application of humanitarian law. In addition to other criteria mentioned below, the non-state parti- cipants must qualify as belligerents or insurgents – a status of doubtful applicability to a group not associated with any specific territory.25 One commentator has suggested that armed attacks by Al-Qaeda, which is neither a state, nation, belligerent, nor insur- gent group (as those terms are understood in international law), can trigger a right of selective and proportionate self-defense under the UN Charter against those directly involved in such armed attacks. However, neither these attacks nor the use of military force by a state against such attackers can create a state of war under international law.

26 Another commentator has asked: ‘Should the events of September 11 be con- sidered an ‘‘act of war’’? It depends on whether a government was involved’.27

Identification of Territory (Ratione Ioci) While CA 3 does not require territorial control by the non-state party, the conflict must still occur ‘in the territory’ of a high contracting party. Some analysts construe this requirement to mean that the conflict must be limited to the territory of a high contracting party.28 For this element alone, terrorist attacks on civilian targets in New York may suffice, but retaliation against alleged terrorists in Yemen, for example, may not.29 This is not because Yemen is not a party to the GCs. It is. Rather, it is because CA 3 is of questionable application to an isolated, targeted killing of persons outside of US territory.

Relationship of Events to an Identified Conflict (Ratione Materiae) The strike in Yemen on 4 November 2002 highlights another element. ‘Acts of war’ is an understandable, perhaps inevitable, description of the 11 September attacks. How- ever, this rhetorical reaction does not answer the question of whether or not those attacks and the response to them are part of an armed conflict, i.e., that they have a sufficient nexus to an armed conflict. For example, there should be no doubt that the military confrontation in Afghanistan following the 11 September attacks was (and perhaps remains) an armed conflict. And a case can be made that the 11 September attacks are a part thereof. But it does not necessarily follow that the targeted killing of terrorist suspects by US authorities in Yemen a year after the 11 September attacks falls within that conflict and, therefore, is an event to which humanitarian law applies.

163 Interesting Times for Humanitarian Law

Identification of Beginning and End of Armed Conflict (Ratione Temporis) According to the jurisprudence of the International Criminal Tribunals for the former Yugoslavia30 and Rwanda,31 as well as under the definitions of the newly established permanent International Criminal Court,32 hostile acts must be ‘pro- tracted’ in order for the situation to qualify as an ‘armed conflict’. In fact, the Yugoslavia Tribunal has specifically stated that the reason for this requirement is to exclude the application of humanitarian law to acts of terrorism.33 On the other hand, the Inter-American Commission on Human Rights says that intense violence of brief duration will suffice.34 Likewise, it remains to be seen whether the mere grav- ity of damage resulting from the 11 September attacks will, in retrospect, become a ‘decisive point of reference for the shift from the mechanisms of criminal justice to the instruments of the use of force’.35 Whether or not the conflict needs be pro- tracted, and whether or not intensity can take the place of duration, the beginning and end must be identifiable to know when humanitarian law is triggered, and when it ceases to apply.

Armed Conflict The most important and most commonly forgotten element is that application of CA 3, like all other aspects of humanitarian law, depends on the existence of a particular quality of hostilities that amount to armed conflict. And yet, nowhere in the GCs or APs is the term ‘armed conflict’ defined. Where the question arises – ‘Is there a state of international armed conflict (i.e., between or among states)?’ – the analysis is rela- tively easy. The answer is ‘yes’ whenever there is ‘any difference arising between two States and leading to the intervention of armed forces’.36 The determination of non- international armed conflict, however, is more complex. One can start with the dis- qualifying criteria of AP II, Article 1.2 (internal disturbances and tensions such as riots, etc.),37 but they are hardly precise. One can proceed to the inclusive criteria of the ICRC Commentary, reproduced earlier in this article, but there is no consen- sus on their legal authority. The ICRC Commentary also appears to presume that the non-state party to the conflict is acting within a determinate territory in revolt against, and attempting to displace, its own government. Must military means be used? Can the line between military and nonmilitary means be neatly drawn? This potential criterion is related to the question of intensity, which has been suggested as an alternative to the requirement that the conflict be ‘protracted’ (see above). Tra- ditionally, acts of international terrorism were not viewed as crossing the threshold of intensity required to trigger application of the laws of armed conflict.38 Some authority to the contrary is suggested by historical precedents involving the use of military force against extraterritorial non-state actors as indicative of ‘war’. But these examples still fail to make the case that use of such force necessarily triggers the law of armed conflict.39

In Defense of Humanitarian Law

The Proper Limits of Humanitarian Law

The broadest, most significant criticism of humanitarian law seems to be that it should adopt provisions to cover so-called ‘new forms of conflict’. Those who take this view are either wittingly or unwittingly calling for expansion of the concept of armed conflict, or the expansion of the scope of application of humanitarian law

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beyond armed conflict. The critics who claim that humanitarian law does not encompass the war on terror in the broad, rhetorical sense of that phrase are right. But inapplicability of humanitarian law to aspects of the war on terror that do not meet the criteria discussed previously should be viewed as a benefit rather than an obstacle or collision. Recall the compromise nature of humanitarian law: A license to kill enemy combatants, and to detain without charges or trials anyone who poses a security risk, is the price paid for rules designed to minimize human suffering. In peacetime, domestic and international criminal and human rights law prohibits and punishes homicide. Where the lex specialis of humanitarian law is active, however, those prohibitions are narrowed, and humanity is denied some very fundamental protections provided by other legal regimes.

This is not to imply that any state has explicitly suggested a need to move the boundaries between humanitarian law and other legal regimes. On the contrary, the position of most states leading up to the ‘Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law’, spon- sored by the Harvard University Program on Humanitarian Policy and Conflict Research early in 2003 was ‘no development of humanitarian law’. However, we have also heard several disturbing, counterproductive and simply inaccurate asser- tions as to the content of humanitarian law, which if repeated often enough at influ- ential levels, will become the functional equivalent of legal development.

Some Misguided Assertions Concerning Humanitarian Law

The War on Terror is an International Armed Conflict US officials and other analysts have asserted that the global war on Terror is an international armed conflict40 even when it is not a conflict between states, where the territorial boundaries of the conflict are undefined, where the beginnings are amorphous and the end undefinable and, most importantly, where the non-state par- ties are unspecified and unidentifiable entities that are not entitled to belligerent sta- tus. Since an international armed conflict under humanitarian law must be between two or more states, the better terminology for those aspects of the war on terror that do amount to armed conflict and that cross state

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