controlling the use of force - a role for human rights

* Colonel and Deputy Judge Advocate General/Operations, Canadian Forces. This article is based on a paperfirst presented at the New Wars, New Laws? Conference held at Cornell Law School in June 2003 while the authorwas a visiting fellow in the Human Rights Program, Harvard Law School. The opinions expressed are those of theauthor and do not necessarily reflect the views of the government of Canada, the Canadian Forces, or the Officeof the Judge Advocate General.

1 Weapons of mass destruction are identified as “a chemical, biological, radiological, or nuclear weapon, or high-yield 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 theInternet to plan attacks, raise funds, spread propaganda, collect information, and communicate securely”). “Asym-metric warfare” has been defined as fighting for different ends, or in different ways, or with different means fromthose of one’s 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 AK–47 and similar small arms stand out as late-twentieth-century symbolsof warfare by the “people.” As John Keegan notes, the industrialization of modern society militarized the popula-tions 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 carriedout 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).

1

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

By Kenneth Watkin*

According to protesters, U.S. soldiers fired on them without provocation, killing seven-teen people and wounding more than seventy. According to the U.S. military, the soldiersreturned 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 thatinternational humanitarian law exclusively regulates the use of force in armed conflict. Thedeath and destruction caused on September 11, 2001, reflect the increasingly complex natureof modern conflict. Groups that rely on the benefits of globalization and technological ad-vances to conduct operations across international borders are threatening the maintenanceof international order. Their tools of violence range from conventional weapons of war tomore modern weapons of mass destruction1 and potentially asymmetric “cyber attacks.”2

At the same time, the proliferation of internal armed conflicts points to similarly complexsecurity challenges within nation-states. These conflicts have not always attracted the sameamount of publicity as transnational terrorism, which does not, however, make their threat tointernational and human security any less real. In these situations, death and human sufferinglargely emanate from readily available, but relatively “low-tech” means, such as antipersonnelmines, the ubiquitous AK–47 rifle,3 and even machetes and transistor radios.4

Increasingly, the use of force during armed conflict is being assessed through the perspec-tive of human rights law, as well as under international humanitarian law. This article exploresthe interface between these two normative regimes and its impact on efforts to control theuse 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

2 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 98:1

5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226 ( July 8).6 Id., para. 25.

of a consensus on the legal categorization of conflict, creates conditions in which the crim-inal law enforcement and armed conflict paradigms overlap. This overlap, in turn, directlyaffects the applicability of human rights law, which is most commonly associated with lawenforcement, and humanitarian law, which applies during armed conflict. As a result, forcemay be used in situations where it cannot easily be delineated which of the two normativeframeworks governs.

Second, by highlighting areas of commonality and difference, the two normative frameworkswill be seen to share common values and a close connection to the development of the nation-state. Each regime has developed along a unique path shaped by the different roles a stateperforms in maintaining external and internal order. For example, the nature and scale of vio-lence in interstate conflict has had a distinct impact on how force is controlled under inter-national humanitarian law. In contrast, the internal use of force is normally dealt with undera human rights paradigm. Notwithstanding these differences, both normative regimes may bebrought into play simultaneously because of the nature of the violence that may be encoun-tered during armed conflict. Such interface may occur during internal armed conflict andstates of emergency, belligerent occupation, and global terrorism.

Third, this article examines the unique attributes that the human rights accountabilityframework brings to the effort to control the use of force. That highly developed system ofaccountability 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 internationalhumanitarian law. The pressure to apply human rights principles arises in particular duringsituations 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 anadjustment in the application of those accountability principles. Principles developed fordomestic law enforcement may not be readily applicable to the different and often morecomplex circumstances under which force is applied during armed conflict.

It is the unique interface between these two normative frameworks that challenges the tra-ditional idea that the use of force in armed conflict is governed exclusively by internationalhumanitarian law. Ultimately, this article argues that the issue should not be the exclusiveapplication of either framework but, rather, that appropriate principles should be appliedto 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 alwaysevident in the relevant terminology. For example, the normative frameworks for regulatinglife and death are often discussed in terms of two distinct spheres of activity, “armed con-flict” and “peace.” While international humanitarian law applies to international and nonin-ternational armed conflict and international human rights principles primarily affect gover-nance in peacetime, especially law enforcement, the relationship between the two is muchmore complex than this simple division of responsibilities implies. For example, humanrights law continues to be applicable during armed conflict, although, as the InternationalCourt of Justice decided in the Nuclear Weapons Advisory Opinion,5 whether there has beenan arbitrary deprivation of the right to life is determined by international humanitarian lawacting as lex specialis.6

2004] CONTROLLING THE USE OF FORCE: A ROLE FOR HUMAN RIGHTS NORMS 3

7 See Antonio Cassese, Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law, 12 EUR. J. INT’LL. 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 betweenstates. As a result, conflict between states was what that law regulated. L. C. GREEN, THE CONTEMPORARY LAW OF ARMEDCONFLICT 54–55 (2d ed. 2000). This view is reflected in Prosecutor v. Tadi , Appeals Judgment, No. IT–94–1–A,para. 84 ( July 15, 1999) (holding that “[i]t is indisputable that an armed conflict is international if it takes placebetween two or more States”). Decisions of the International Criminal Tribunal for the Former Yugoslavia areavailable online at <http://www.un.org/icty>.

9 The use of the term “armed conflict” resulted from the recognition that the application of international human-itarian law should not be dependent upon formalities associated with war. INTERNATIONAL COMMITTEE OF THE REDCROSS, 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]. Themore limited use of the term “war” was linked to efforts in the first half of the twentieth century to eliminate war asa means to resolve disputes between states. Hence the de jure concept of war being of limited use in the discoursefor 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 INT’L & 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 “armedattack”: the scale of the incidents was akin to that of a military attack; the United States immediately perceived theincidents as akin to a military attack; the U.S. interpretation was largely accepted by other nations; the incidentscould properly be viewed as both a criminal act and an armed attack; there was prior state practice supporting theview that terrorist bombings could constitute an armed attack; and “the fact that the incidents were not undertakendirectly 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. INT’L L.J. 41,47–50 (2002).

12 RICHARD FALK, THE GREAT TERROR WAR 101 (2003); Davis Brown, Use of Force Against Terrorism After September11th: State Responsibility, Self-Defense and Other Responses, 11 CARDOZO J. INT’L & COMP. L. 1, 6 (2003); Cassese, supranote 7, at 999; Christopher Greenwood, International Law and the ‘War Against Terrorism,’ 78 INT’L AFF. 301, 314(2002); see also Fitzpatrick, supra note 7, at 349 (indicating that “[t]he attacks of September 11, if attributable toa foreign state linked to Al Qaeda, clearly could give rise to an international armed conflict between the UnitedStates and the sponsor state”).

13 Murphy, supra note 11, at 47. Under the heading “Afghanistan as Self-Defense,” Richard Falk also refers toAl Qaeda as having inflicted more harm and trauma than any state (Pearl Harbor is viewed as remotely comparable),

The events of September 11 have focused attention on the potential overlap betweeninternational conflict, noninternational armed conflict, and law enforcement. Further, thedisturbing level of violence that nonstate actors can inflict has caused significant uncertaintyabout the suitability of situating criminal acts related to terrorism within the purview of lawenforcement. The following discussion highlights the present lack of consensus on the cate-gorization of contemporary nonstate violence and thus sets the scene for analyzing the areasof 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 anarmed conflict exists. The traditional view of armed conflict is perhaps most clearly repre-sented 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 oftenrhetorical sense.9 The immediate post–World War II recognition of a broader concept of armedconflict is also reflected in the term “armed conflict not of an international character” foundin common Article 3 of the 1949 Geneva Conventions.10

The difficulty in assessing whether attacks by nonstate actors with global reach constitutean international armed conflict can be seen in the wide variety of opinions expressed by legalscholars on the invocation of the right to self-defense in response to the attacks of Septem-ber 11. The legal interpretations of the basis for the conflict with Al Qaeda often rely on mul-tiple interrelated rationales that add to the complexity of the analysis.11 Some authors considerthe right of self-defense to be based on the connection between Al Qaeda and the Talibanas the de facto rulers of Afghanistan.12 Some view Al Qaeda’s actions as constituting signifi-cant attacks in their own right.13 Others look to the involvement of the Security Council to


and then concludes that “[i]n such circumstances stretching the international law doctrine of self-defense toinclude a non-state actor seemed reasonable and necessary.” FALK, supra note 12, at 102. Cherif Bassiouni observesthat international humanitarian law is binding on both state and insurgent or revolutionary forces and then states:“Al Qaeda’s attacks against the United States on September 11 and earlier fall within this paradigm: they are subjectto the strictures of international humanitarian law, regardless of the legitimacy of their perpetrators’ cause.” Subse-quently, he goes on to discuss the role of Afghanistan as a “base of operation.” M. Cherif Bassiouni, Legal Controlof International Terrorism: A Policy-Oriented Assessment, 43 HARV. INT’L L.J. 83, 100 (2002); see also Brown, supra note12, at 24–29.

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 24–25 (stating: “If a non-state actor such as a terrorist organization commits aggressionagainst a state, and the aggression is of sufficient scale and effect to amount to an armed attack, then the terroristorganization itself—notwithstanding its non-combatant status—has 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 “inter-

nationalised civil war,” in which “the rules pertaining to both international and civil wars may be applicable in differ-ent 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 Conven-tions, on the Ground That Changes Are Likely Only to Damage Human Rights, FINDLAW’S WRIT: COMMENTARY (Feb. 4, 2003),at <http://writ.news.findlaw.com/commentary/20030204_dworkin.html>. Since international law does not recog-nize 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 topursue 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 thepeace and armed attack are not mutually exclusive” in arguing that the characterization of the September 11 attacksas 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.INT’L L. 227, 229 (2003) (arguing that “ ‘armed attack’ in the sense of Article 51 is an actual armed attack, . . . notone 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. at101, para. 191 (referring to “most grave” and “less grave” forms of the use of force).

provide legitimacy,14 while still others deem terrorist groups with global reach as generallyamenable to being targeted with a military response.15 It has also been suggested that theoperations in Afghanistan constituted an intervention in an internal armed conflict16 or theinternationalization of a civil war.17

Importantly, the response to terrorism has not been viewed solely in the context of an armedconflict. 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 shouldhave 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 engagementin international armed conflict inevitably involves consideration of the numerous terms relat-ing to the use of force in the United Nations Charter: the use or threat of force, breach of thepeace, act of aggression, and armed attack. However, one finds a lack of consensus on howthese terms interact in determining whether an armed conflict exists.20 Similarly, determiningthe point at which terrorist attacks constitute an armed attack is complicated by the inabilityof international legal scholars to agree on the interpretation of the International Court ofJustice’s 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 twocategories, “most grave” (those constituting armed attacks) and “less grave,” and its findingof a distinction between armed attacks and mere frontier incidents, appear to have split writers“into two camps.”22 One group sees the Court’s view as narrow and unduly formalistic, so


23 GRAY, supra note 22, at 141 (relying on W. Michael Reisman, Allocating Competences to Use Coercion in the Post–ColdWar World: Practices, Conditions, and Prospects, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER, supra note 20, at 26).

24 Id. at 141–42.25 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-Qa’ida . . . appears

to fit neither of these moulds.” According to Fitzpatrick, supra note 7, at 348, “The September 11 attacks did notlaunch an internal armed conflict in the United States as understood in international humanitarian law.” DerekJinks, September 11 and the Laws of War, 28 YALE J. INT’L L. 1 (2003), suggests that the attacks by Al Qaeda on 9/11 werenot 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 Arti-cle 3 of the 1949 Geneva Conventions. This approach appears somewhat counterintuitive given the ability of suchterrorist 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 internationalhumanitarian law.

27 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victimsof Non-International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 1, 1125 UNTS 609 [hereinafter Proto-col 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.TREATIES–5 [hereinafterICC Statute].

28 Bassiouni has noted that “[g]lobalization has . . . allowed terrorist groups to network with one another, permit-ting terrorist groups to develop strategic alliances with other groups engaged in transnational criminality in order todevelop synergetic connections and to maximize respective capabilities and effectiveness.” Bassiouni, supra note13, at 88; see also JOHN K. COOLEY, UNHOLY WARS: AFGHANISTAN, AMERICA AND INTERNATIONAL TERRORISM 127 (2ded. 2000) (observing that all sides in the Afghan wars prior to September 11 “used drugs as an actual weapon andas a source of finance, [which] gave this monstrous and lucrative international business a decisive push forward”).

29 Greenwood, supra note 12, at 310–11 (containing the text of the United States and United Kingdom lettersto the UN Security Council outlining their reliance on the right of self-defense enshrined in Article 51 of the UNCharter); Murphy, supra note 11, at 45–51. International recognition of the exercise of the right to self-defenseis 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 PressRelease (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 TerroristAttacks on the United States (Sept. 14, 2001), at <http://www.pm.gov.au/news/01_news.html>.

restrictive that ultimately it “will encourage aggression of a low-key kind.”23 The second groupappears to see the principle of collective self-defense, combined with a lower threshold ofarmed attack, as a threat to world peace that could lead to “a risk of the internationalizationof civil conflicts and the expansion of inter-state conflicts.”24

This lack of agreement is not helpful, particularly since the assessment of the existence ofan 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 linesbetween armed conflict and criminal law enforcement. At the other end of the spectrum, toohigh a threshold may leave a state at risk, especially if there is a credible threat involving theuse of weapons of mass destruction by a nonstate actor.

Attacks by nonstate actors challenge the view of a neat division of armed conflict into thetwo spheres of international and noninternational.26 Identification of the boundaries ofnoninternational armed conflict has never been easy. While international humanitarian lawis 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 clearor absolute.

In many respects, global terrorism seems to straddle the law enforcement and armed con-flict paradigms. Engagement in criminal activity by terrorist groups, warlords, and other non-state actors to finance their operations adds significantly to the perception of an overlap betweenlaw enforcement and the conduct of hostilities.28 At the same time, efforts to position the useof force on the scale of the events of September 11, which included an attack on the Pen-tagon, as an exclusively criminal matter not constituting an armed attack appear inconsistentwith the very strong international response based on the exercise of the right of self-defense.29


30 Murphy, supra note 11, at 49; see also Cassese, supra note 7, at 1000 (stating that “[i]n addition to using militaryforce 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 OPPENHEIM’S 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. INT’L 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 instrumentsof 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 primarilya 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 oppo-

nents”; the provision of support to “repressive regimes” allied in the war on terror; the potential for weakeninginternational humanitarian law; the bypassing of the United Nations; and the potential for abuse of the just wardoctrine. FALK, supra note 12, at 112–28; see also Fitzpatrick, supra note 7, at 347; Fitzpatrick, supra note 33, at 244–45.But see Abraham D. Sofaer, On the Necessity of Pre-emption, 14 EUR. J. INT’L L. 209, 225 (2003) (stating that “[l]ookingat the ‘war’ on terrorism thus far, the concept of pre-emption is being applied in a responsible manner, thoughsome 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 bellumis derived from the “old word duellem.” The de facto concept of war was not limited to “public” war between twosovereigns. He notes that private war “is more ancient than public war and has, incontestably, the same nature aspublic war; wherefore both should be designated by one and the same term.” 2 HUGO GROTIUS, DE JURE BELLI ACPACIS 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 designedto instill terror in a segment of society in order to achieve a power-outcome, propagandize a cause, or inflict harmfor vengeful political purposes”); see also GRANT WARDLAW, POLITICAL TERRORISM 8–10 (1982) (distinguishing betweenacts of “terror,” which may be carried out by criminals, mentally unstable persons, etc., and “terrorism,” which isdefined by its “high symbolic content”).

40 Philip Heymann points out that the definition of terrorism by academics often has a far more moral or crim-inal flavor than state definitions suggesting that terrorists are hostile forces acting for political purposes. In his

Apparently, the challenge of international terrorism does not need to be dealt with exclu-sively under either criminal law or the law of armed conflict. Indeed, Sean Murphy has sug-gested that the September 11 incidents be seen in exactly this way.30 The criminal natureof the members of Al Qaeda is reflected in their being equated with pirates.31 However, thecategorization of groups like Al Qaeda as international criminals32 does not change the natureor scope of the threat they pose to their targets.

Concern has been expressed, though, that shifting counterterrorism action from a crimecontrol to an armed conflict model would “displace human rights norms as the primary legalconstraint on counter-terrorist tactics.”33 But such a shift might also be viewed as a change inemphasis 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 triggeredthe 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 Qaedaand 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 inarmed conflict. The term “nonstate” can be misleading, as it largely relates to “private” par-ticipants37 in a conflict, as opposed to those who may be irregular forces “belonging to”38 astate. Categorizing these private actors is made more difficult by the increasing use of the “ter-rorist” label. A definition of terrorism has yet to be agreed upon,39 and proposed versionssometimes show a preference for limiting it to the criminal sphere40 or nonstate activity.41


view, violence against civilians in the context of a guerrilla war or during a war between states is “not consideredterrorism in many contexts simply because it is not subject to the same remedies (which are designed for timesof peace).” PHILIP B. HEYMANN, TERRORISM AND AMERICA 5 (1998).

41 The U.S. government recently defined terrorism as “premeditated, politically motivated violence perpetratedagainst noncombatant targets by subnational groups or clandestine agents” (emphasis added). NATIONAL STRATEGYFOR 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 sensehas been and remains a part of warfare. States engaged in armed conflict may legitimately attempt to instill fear inan opponent, but “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilianpopulation are prohibited.” Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection 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; CHARLESTOWNSHEND, TERRORISM: A VERY SHORT INTRODUCTION 6–8 (2002); WARDLAW, supra note 39, at 9.

43 Terrorism ultimately refers to acts that are already illegal under domestic and international law, including thelaw 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 warwas changing in Europe at the beginning of the nineteenth century, including insurgent operations with all theattributes 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 classifiedas “highway robbers or pirates,” “armed prowlers,” or “war-rebels.” U.S. War Dep’t, Instructions for the Governmentof Armies of the United States in the Field, General Orders No. 100, Arts. 82, 84, 85 (Apr. 24, 1863), reprinted in THELAWS 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 Carolinedispute).

46 As of November 9, 2003, a total of 191 states were parties to the 1949 Geneva Conventions; 161 countries wereparties to Protocol I; and 156 were parties to Protocol II. The 30 countries that are not parties to Protocol I includeIndia, 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 interna-tional law since 1977 with the adoption of Article 1(4) of Protocol I and Protocol II additional to the 1949 GenevaConventions . . . .” GREEN, supra note 8, at 55–56. 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 notqualify for combatant status but participate directly in hostilities. They have variously been termed “unlawful bellig-erents,” “unlawful combatants,” “unprivileged belligerents,” or simply “enemy combatants.” Spies and saboteurs oper-ating behind enemy lines out of uniform are considered to be “unprivileged belligerents” and therefore not entitledto combatant or prisoner-of-war status. Richard R. Baxter, So-called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs,1951 BRIT.Y.B. INT’L L. 323, 328 (defining unprivileged belligerents as “persons who are not entitled to treatmenteither as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conductwithout meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949”).

However, it has been acknowledged that illegitimate acts of terror can occur during armedconflict, or otherwise be carried out by and on behalf of states.42 Although the “terrorist” labelcan express moral condemnation and focus attention on the nature of the threat posed by thecriminal act,43 the vagueness of the term makes it an imperfect vehicle for definitively deter-mining 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 partici-pated in hostilities within the context of international armed conflict.44 The classic case out-lining the grounds for self-defense under international law, the Caroline dispute, has becomethe 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 challengedinternational humanitarian law since the earliest attempts at codification. The provisionsof Additional Protocol I to the 1949 Geneva Conventions, although not accepted by certainsignificant states,46 marked an important milestone by providing the qualifying armed forcesof nonstate “national liberation movements” with combatant status.47 Still, there remains adiverse range of state and nonstate participants in international armed conflict who can betermed “unprivileged belligerents” or “unlawful combatants.”48 These nonstate actors, whodo not qualify for combatant status, often participate in hostilities on a level and at a degreeof 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


49 Gerald L. Neuman, Humanitarian Law and Counterterrorist Force, 14 EUR. J. INT’L L. 283, 297 (2003); see alsoWaldemar A. Solf, The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and TransnationalPractice, 33 AM. U. L. REV. 53, 58–59 (1983). As noted in LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT60 (2002), “Once rebels are captured, or otherwise rendered unable to continue fighting, . . . they become horsde combat and are entitled to the same level of humane treatment as civilians. Their legal status nevertheless remainsunchanged, exposing them to the full force of the State’s 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 con-

trolling waterworks and dams, with a consequent flooding of inhabited areas), it would qualify as armed attack.”DINSTEIN, supra note 25, at 166–67; see also GREG RATTRAY, STRATEGIC WARFARE IN CYBERSPACE 20 (2001) (indicatingthat 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, Israel’s 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 Qaedain 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 terrorand moved the Bush administration away from the law enforcement-based tactics of arrests and detentions ofQaeda 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 militarypersonnel” has included work on blunt-trauma projectile weapons, pepper spray for barricade scenarios, technologyfor disorienting suspects, and electric-shock weapons. Hearing of the Subcommittee on Aviation of the [House] Com-mittee on Transportation and Infrastructure (May 2, 2002) (statement of Sarah V. Hart, director of the NationalInstitute 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 toincapacitate a Chechen rebel group that had seized a theater in Moscow, causing the death of a large number ofhostages. The U.S. National Institute of Justice has researched the use of Fentanyl drugs as nonlethal weapons, butin 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>.

groups.49 Thus, a state can be engaged in an “armed conflict with an insurgent or revolution-ary group, irrespective of that group’s legitimacy, and vice versa.”50

Controlling Deadly Force

The nature of the violence that can occur during, or contemporaneously with, an armedconflict also plays a role in the determination of the applicable regime. The use of force inan 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 fromthe obligation to maintain security in occupied territory, force may also be applied in exer-cising 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 con-text in which the use of force might be considered, this analysis focuses on the applicationof “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 contempo-rary armed conflict are exceptionally broad. Thus, an attack on the computer network con-trolling a water supply represents the latest ingenious means of applying force that can havea deadly effect.51 Computer technology has been combined with information gathering andprecision weapons to target opposing leaders in perhaps one of the most obvious and emo-tional 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 attemptto kill President Saddam Hussein at the start of the conflict in Iraq,52 the targeting of Pales-tinian resistance leaders in the Israeli-occupied territories,53 and the killing of suspected Qaedaterrorists in Yemen.54

Since military forces might be asked to participate in a wide range of operations, other, lesstraditional applications of force, such as less-than-lethal weapons55 and riot control agents, mayenter into the equation. Despite their intended less-than-lethal effect, such options often retainthe potential for death or serious injury56 and must therefore be closely controlled as well.


57 Prosecutor v. Delali , Appeals Judgment, No. IT–96–21–A, para. 149 (Feb. 20, 2001) ( elebi i case); see alsoTheodor Meron, The Humanization of Humanitarian Law, 94 AJIL 239, 266–67 (2000).

58 Yoram Dinstein, Terrorism as an International Crime, 1987 ISR. Y.B. HUM. RTS. 55, 63; see also Inter-AmericanCommission 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 Reporton Terrorism].

59 Ignatieff, supra note 34, at 1144. The depth of the proscription against the taking of life among early Chris-tians is reflected in the view that there “was no lack of those who did not indeed disapprove of public war, but whothought 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, INNO-CENT CIVILIANS: THE MORALITY OF KILLING IN WAR 19–22 (2002) (indicating that Augustine’s work on just war theorywas 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 Alegría 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 dispo-sition towards others such as befits a human being.” Robin Coupland, Humanity: What Is It and How Does It InfluenceInternational Law? INT’L REV. RED CROSS, Dec. 2001, at 969, 972 (quoting 7 OXFORD ENGLISH DICTIONARY 476 (2ded. 1989)). Coupland makes a strong argument for viewing “humanity” in an interrelated fashion with physicalsecurity 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 thepreservation of the principles of humanitarianism.” It is in the context of principle and behavior that humanity hastraditionally been balanced against military necessity.

Even though the approach to terrorism as solely a law enforcement responsibility is beingchallenged by the categorization of terrorist acts as armed conflict, the change brought aboutby the complexity of contemporary conflict is not moving entirely in one direction. Theapproach to the control of force in armed conflict as the exclusive domain of internationalhumanitarian law is facing an intensified effort to have it encompass human rights normsand their associated accountability structure. This analysis now turns to the impact of thosehuman rights norms on regulating the use of force in contemporary conflict and their poten-tial 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 heldprinciple that is protected in times of both peace and war. A common starting point of bothhuman rights and humanitarian law is respect for human values and the dignity of the humanperson. The two normative regimes “share a common ‘core’ of fundamental standards whichare applicable at all times, in all circumstances and to all parties, and from which no deroga-tion is permitted.”57 It has been noted that “[w]hen life is deprived, it is impossible to enjoyany fundamental freedom.”58

This fundamental status makes it tempting to consider the right to life in unqualifiedterms. However, the absolute nature of the right is challenged by the need to maintain orderin society, both domestically and internationally, which may occasionally lead to the use ofdeadly 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 gov-ernance. As a result, “just war theory,” which authorized warfare as a Christian activity, wasdeveloped as that religion became “linked with the secular power of the Empire.”60 Since thestate has the right and the duty to guarantee the security of its citizens, it may be requiredto use deadly force, although its power is not unlimited and its actions are “subject to law andmorality.”61

Members of the armed forces and civilians enjoy the same fundamental right to life, but thatright is limited by the different societal demands according to which human rights and inter-national humanitarian law operate. The normative framework of international humanitarianlaw differs in many respects from that of international human rights law. One fundamentaldifference is that humanitarian law requires the balancing of humanity62 with military necessity.


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 BasicPrinciples].

64 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 6(1), 999 UNTS 171 (providing: “Everyhuman being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprivedof his life.”).

65 European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signatureNov. 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, lan-guage, 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 Conflict—The Advisory Opinion of the International Courtof Justice in the Nuclear Weapons Case, 4 YALE HUM. RTS. & DEV. L.J. 1, 3 (2001) (suggesting that “the AdvisoryOpinion is a significant statement on the convergence of humanitarian principles between the law of armed con-flict and international human rights law”).

69 For example, common Article 3 of the four 1949 Geneva Conventions and Additional Protocol II are impor-tant in terms of providing humanitarian protection to victims of internal conflict, but they do not provide the levelof detail or scope of protection afforded by the codified law governing international armed conflict.

A primary goal of military necessity is the submission of the enemy at the earliest possiblemoment with the least possible expenditure of personnel and resources. It justifies the appli-cation of force not prohibited by international law. Because armed conflict largely consistsof the application of deadly force, this balancing with humanity forms a major and highly vis-ible part of international humanitarian law.

This aspect of international humanitarian law sometimes leaves the impression that, incontrast, human rights law is absolute in nature. However, that normative structure mustalso account for the taking of life so as to maintain social order. Although legally sanctionedkilling is often considered in the context of the death penalty, the right to life is also limitedby competing interests such as the right to self-defense, acting to defend others, the preven-tion of serious crimes involving a grave threat to life or serious injury, and the use of force toarrest 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 aperson not be “arbitrarily” deprived of life.64 Examples of such limitations are found in Arti-cle 2 of the European Convention for the Protection of Human Rights and FundamentalFreedoms, which provides that the right to life is not contravened where no more force thanis absolutely necessary is used “in defence of any person from unlawful violence,” “in order toeffect a lawful arrest or to prevent escape of a person lawfully detained,” or “in action lawfullytaken for the purpose of quelling a riot or insurrection.”65 The Convention also makes an excep-tion for “deaths resulting from lawful acts of war.”66

Despite the differences between international humanitarian law and human rights law, theyexhibit a commonality of content that causes them to converge.67 Human rights norms reflectedin the Universal Declaration of Human Rights and the other post–UN Charter human rightsdocuments have had a significant impact, “producing a large measure of parallelism betweennorms, 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 codifica-tion 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 closeinteraction between the two normative regimes, particularly when nonstate actors operatewithin 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 humanvalues, the frameworks within which they traditionally operate are significantly different. Those


70 War is referred to here in a “factual” sense. See supra note 9. 71 BROWNLIE, supra note 60, at 3–13.72 The term “national liberation movements” is used generically to describe “peoples [who] are fighting against

colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determina-tion,” 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, 4–6 (1991); Hans-Peter Gasser, An Appeal for Ratification by the United States, 81 AJIL 912, 916–17 (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 self-determination will be so narrowly interpreted, although it has been noted that a broader interpretation “can onlyoccur if the practice of States in this regard undergoes considerable change.” Christopher Greenwood, Terrorismand Humanitarian Law—The Debate over Additional Protocol I, 1989 ISR. Y.B. HUM. RTS. 187, 194–95.

74 Hans-Peter Gasser, Acts of Terror, “Terrorism” and International Humanitarian Law, INT’L REV. RED CROSS, Sept.2002, at 547, 563 (stating: “Any combatant who chooses to engage in guerrilla warfare remains bound to respect allrules 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 WARIN INTERNATIONAL ARMED CONFLICT 50–52 (International Law Studies No. 59, 1978); Frits Kalshoven, The Position ofGuerrilla Fighters Under the Law of War, 11 MIL. L. & L. WAR REV. 55, 81–82 (1972); W. Thomas Mallison & Sally V.Mallison, The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict, 9 CASEW. RES. J. INT’L L. 39, 58–63 (1977).

differences have been uniquely shaped by the role that nation-states have long performed inmaintaining external and internal order. By exploring the unique nature of both interstateand intrastate conflicts, the application of human rights law in regulating armed conflict canbe properly situated.

Interstate Conflict

The state’s monopolization of violence is one context in which to analyze internationalhumanitarian law. The existence of a single or “right authority” to govern conflict is closelylinked to the concepts of public and private war70 and the rise of organized society out of thefeudal structure of the Middle Ages. A key element to establishing order was controlling theability of private individuals to engage in hostilities. The ultimate authority to use force wasconcentrated in the hands of a sovereign. The exclusive role of the governing authority insuppressing private war and waging public war continued as control of society proceeded fromthe church to the sovereign and, finally, to the nation-state with the Treaty of Westphaliain 1648.71

A continuing effect of the “right authority” principle is that the state remains the primarylegitimate 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 acknowl-edgment of a right to self-determination eventually resulted in the inclusion of national lib-eration movements in Additional Protocol I72 as one of the “authorities” that might legitimatelyengage in public war. Even so, while interpretations as to which groups might qualify for thisstatus vary, some legal scholars have noted that this provision operates as only a relativelyminor change in the preexisting law.73 Analysis of the ability of national liberation movementsto fulfill the statelike role provided for in Additional Protocol I has included questions aboutwhether guerrilla forces can realistically be expected to meet all the requirements of the Pro-tocol, such as compliance with the stringent rules governing the housing and treatment ofprisoners of war. However, all participants in armed conflict remain obligated to comply withinternational humanitarian law.74 As a result, states remain primarily responsible for engagingin public war.

The organization of the state, and in particular its claim to a monopoly of violence for themaintenance of external and internal order, has a direct impact on the normative regimesthat govern its use of force. As Vattel indicated, war was carried on in the name of the sover-eign, and individual members of the armed forces and “those by whose agency the sovereign


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 Grotius’s 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 relationbetween states rather than men. MCKEOGH, supra note 60, at 121. See also infra note 114 for a discussion of the groupcharacteristics of combatancy.

77 MARTIN VAN CREVELD, THE RISE AND DECLINE OF THE STATE 249 (1999); see also WARD THOMAS, THE ETHICSOF DESTRUCTION 62 (2001) (discussing the link between the organization of the state and the maintenance of mili-tary forces).

78 For example, MICHAEL WALZER, JUST AND UNJUST WARS 185–86 n.* (1977), suggests that war rights should attachto 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 underAdditional 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 Courtof Justice, and the creation of international criminal tribunals and courts point to the availability of alternativemechanisms to avoid and resolve disputes. For example, international and regional cooperation by states in dealingwith terrorism can be effected through treaties, the implementation of extradition, mutual legal assistance, infor-mation sharing, the freezing of financial assets, immigration controls, and the prosecution and punishment of theperpetrators. OAS Report on Terrorism, supra note 58, paras. 33–35; 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 com-

mand for military forces necessary for the exercise of “international statecraft.” JAMES TURNER JOHNSON, MORALITYAND CONTEMPORARY WARFARE 60–61 (1999).

82 The future holds the prospect of global targeting by remotely piloted hypersonic aircraft capable of hittingtargets nine thousand miles away from the launching point. Maxim Kniazkov, U.S. Launches Effort to Develop HypersonicStrike Capability, Agence-France Presse, July 2, 2003, available in LEXIS, News Library, Wires File.

makes war, are only instruments in his hands.”75 Warfare is ultimately conducted as a groupactivity, which has become a defining principle of the modern concept of combatancy.76 Inaddition, the pooling of the considerable technological and human resources of the statehas profoundly affected warfare. It has been suggested that “modern means of death anddestruction would never have been possible without the state, its ministry of defense, . . . andits regular, uniformed, bureaucratically managed armed forces.”77

Assessing the extent to which international humanitarian law applies to internal conflictshas also centered on the issue of the “right authority” to engage in conflict. Whether move-ments seeking to liberate populations from the “tyranny” of governments can legally fulfillthat role has been widely debated, but the power to wage public war and authorize its agentsto use force is solidly entrenched in positive law terms in the state.78

Interstate belligerencies differ significantly from situations of internal conflict because ofthe lack of a single international governing authority. Clearly, the relationships between statesare not governed exclusively by resorting to the use of force,79 but the “absence of both mul-tilateral and domestic enforcement regimes . . . has resulted in making interstate cooperationin 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, thestate 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 individualsor groups under the international legal regime must depend on less certain means. Althoughthe UN Security Council arguably operates as a form of “right authority,” that body can becomemired in political stalemates that hinder its ability to regulate the use of force.81 The deci-sion to act collectively and individually in self-defense set out in Article 51 of the UN Charteris left to the involved states themselves, at least until the Security Council “has taken measuresnecessary to maintain international peace and security.”

Finally, whatever advantage technology has provided to nonstate actors, nation-states remainthe true engines of technological advancement. As a result, interstate conflict, as well asoperations against nonstate actors, may bring destruction to areas previously thought safefrom attack.82


83 As Christopher Morris argues, states’ reliance on force or sanctions is often exaggerated. States exert controlby a variety of behaviors, including taxes, licensing, establishing standards for action, and exercising the right to adju-dicate. Governing by the will of the people is another obvious multiplier of the state’s power to compel obedience.CHRISTOPHER W. MORRIS, AN ESSAY ON THE MODERN STATE 199–204 (1998). Van Creveld, in referring to the roleof the state in “disciplining the people,” indicates that its “grip on society” is the product not only of the develop-ment of specialized police forces and prison systems, but also of state-run educational systems and social legislationgoverning work and health. VAN CREVELD, supra note 77, at 205–24.

84 IAN BROWNLIE, THE RULE OF LAW IN INTERNATIONAL AFFAIRS 213 (1998), identifies elements of the rule of lawas: the powers of officials must be based on authority conferred by law; the law must conform to standards of sub-stantial and procedural justice; the powers of the executive, the legislature, and the judicial function must be sepa-rated; the judiciary should not be subject to the control of the executive; and all legal persons are subject to the rulesof law. See also Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 257–58.

85 KEEGAN, supra note 3, at 386.86 VAN CREVELD, supra note 77, at 206–07.87 TOWNSHEND, supra note 42, at 36–37.88 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 INT’L 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 emer-gencies. On the use of derogations in respect of terrorist activity, see Sabine von Schorlemer, Human Rights: Substan-tive and Institutional Implications of the War Against Terrorism, 14 EUR. J. INT’L L. 265, 278–80 (2003); see also HernánMontealegre, The Compatibility of a State Party’s Derogation Under Human Rights Conventions with Its Obligations UnderProtocol II and Common Article 3, 33 AM. U. L. REV. 41, 41–45 (1983).

Internal Conflict

In contrast, states deal with internal threats in an entirely different way. Internal controlis both more invasive and, to a significant degree, more subtle than the control exercised ininterstate relationships. It does not depend exclusively, or even primarily, on the direct appli-cation of force.83 Rather, emphasis has been placed on maintaining order through the appli-cation of the rule of law.84

The development of police and security forces is directly linked to the ascendancy of thenation-state. John Keegan observes that “[t]he civilised societies in which we best like to liveare 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 thethreat posed by standing armies if their efforts were turned to policing; the elevation of theright to property as an inalienable law of nature; the disarming of the upper classes; and themovement of populations to cities as a consequence of industrialization.86 The state has theability 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, operatedby uniformed and nonuniformed police and domestic security agencies. The control of inter-nal violence is most directly associated with law enforcement.

The level of state control and intervention raises significant issues of privacy and the poten-tial for abuse. The Reign of Terror launched by the generator of the levée en masse, the FrenchNational Assembly, introduced the term “terror” into the modern lexicon.87 It is no coincidencethat efforts to control the power of the state and its impact on individual citizens spawnedhuman rights norms. Human rights are generally “concerned with the organization of Statepower vis-à-vis the individual” and, as such, “found their natural expression in domestic con-stitutional law.”88 This focus on the individual in respect of power wielded by the state is fun-damental to international human rights law.

Within states the application of human rights norms reflects the challenges associated withmaintaining order. Some human rights may be derogated from during “emergencies” to facil-itate the maintenance of public order. While the exercise of such powers is controversial andby law strictly controlled, their existence demonstrates that internal threats to the securityof the state can reach the level of interfering with governance.89 That derogations are not


90 On the role of the “third” force in counterterrorism, see WARDLAW, supra note 39, at 97–100. For example,in Canada the use of the armed forces in support of law enforcement is governed both by statutes, i.e., The Emer-gencies Act, R.S., ch. 22 (4th Supp. 1985), and the National Defence Act, R.S., ch. N–5 (1985), and by the exerciseof the Crown prerogative, i.e., Canadian Forces Armed Assistance Directions, P.C. 1993-624 (Mar. 30, 1993); seealso 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 tothe conflict; what they refuse to acknowledge (and even on occasion strongly deny) is that the Popular Frontis affiliated to them. . . . On the other hand, one hesitates to characterize the operations of this and the otherArab guerrilla groups as a “private war”.

Murphy, supra note 11, at 46–47, notes that Israeli operations in Lebanon in 1982, the 1985 Israeli attack on PLOheadquarters in Tunisia, and the 1986 U.S. attack on Libya in response to the Berlin dance club bombings have notmet with “widespread acceptance by the global community” that the terrorist acts that precipitated those responsesconstituted 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 manufactureof special weapons. It included an extensive network of cells and agents and an internal security service. ROHANGUNARATNA, INSIDE AL QAEDA 57–58 (2002).

93 See MICHAEL IGNATIEFF, THE WARRIOR’S HONOR 159 (1997) (noting that a major contemporary problem isthat some states are disintegrating and losing their monopoly on violence); see also VAN CREVELD, supra note 77,at 403–08. However, there is continuing reliance on the responsibility of states for activities occurring within theirborders. This approach is reflected in the U.S. NATIONAL STRATEGY FOR COMBATING TERRORISM, supra note 1, at11–12, which aims at reducing global terrorism to, first, a regional, and then, a local threat amenable to criminallaw enforcement.

permitted with regard to the right to life is a strong statement of the fundamental impor-tance of that right. At the same time, anyone interpreting the right to life must be preparedto deal with situations, such as emergencies, where a significant degree of violence is beingthreatened or used.

As important as civilian police forces are to the maintenance of internal order, the polic-ing of a state is not always a function of civil police alone. Some states employ security forcesof 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 high-lights the possible heights to which violence can rise in internal conflict.

The Contemporary Challenge

Until recently, commentators have been reluctant to acknowledge that an internationalarmed conflict can occur between a state and a private actor.91 One impact of the September11 attacks is that the destruction inflicted by the Qaeda terrorists has focused attention on achallenge that has more often faced states dealing with internal threats. Today a nonstateactor can attain such a level of organization and sophistication that it poses a threat compa-rable to that presented by military forces acting for or on behalf of a state. Such a group canfield 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 callfor a response other than one focused exclusively on law enforcement.

The phenomenon of failed or failing states, combined with the proliferation of techno-logically sophisticated means of inflicting violence, including weapons of mass destruction,makes the possibility that a private actor will operate outside the framework of state-basedsecurity 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 arecapable of converging, the different way these two normative regimes control the application


94 Protocol I, supra note 42, Art. 43.95 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:

It is necessary to state, or re-state, the fact that nothing that has happened in the second world war has shakenthe legal objection to indiscriminate bombing. . . . It is at the lethal instruments, the lethal processes to befound behind the enemy’s 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 onlyremains 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. INT’L L.J. 1, 4–9 (1975).99 See, e.g., Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in HUMANITARIAN LAW OF

ARMED CONFLICT: CHALLENGES AHEAD 93, 102–03 (Astrid J. M. Delissen & Gerard J. Tanja eds., 1991) (discussingU.S. recognition of the customary law status of some of the basic principles for the protection of civilians, includingdefinition 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.”

of deadly force should first be considered. A unique feature of international humanitarianlaw is that combatants “have the right to participate directly in hostilities.”94 They receiveimmunity from prosecution, often termed as “combat immunity,” for killing carried out in accor-dance with the law.95 In addition, civilians are separated from combatants in accordance withthe fundamental humanitarian law principle of distinction. Moreover, any use of force mustbe controlled to ensure that it is used intentionally only against valid military objectives. Thecontrolled application of force is often referred to in modern military terminology as “tar-geting.” Great efforts have been made over the past quarter century to advance internationalhumanitarian law in this regard.

Notwithstanding the challenges that faced international humanitarian law during WorldWar II, a commitment to the principle that there was still a place in war for “humanity andforbearance” was expressed at the close of the hostilities. This commitment resulted from theterrible loss of life caused by the wartime bombing campaigns,96 and it meant that civiliansshould be protected by international law from intentional targeting.97 In addition, the expe-riences of many of the dominant military powers following World War II, as both supportersand victims of modern warfare, prompted an international effort, ultimately sponsored by theInternational Committee of the Red Cross (ICRC), to consider how to limit the tremendousdestruction inflicted by modern total war.98 This effort culminated in the creation in 1977 ofthe two Additional Protocols to the 1949 Geneva Conventions.

Although thirty countries have not ratified Additional Protocol I, the targeting provisionsare largely seen as reflective of customary international law.99 Protocol I reinforces in codifiedform the fundamental tenet of the obligation to distinguish between persons who take partin hostilities and those who do not. The principle of distinction is reflected not only in thedefinition of the two privileged classes, combatants100 and civilians,101 but also in the strict lim-itation of attacks to “military objectives.”102 Such objectives, however, may include both peopleand objects.103

Additional Protocol I was designed to limit the effects of targeting civilians because of theirinvolvement 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 state’swarmaking capability can affect targeting decisions. For example, international humanitarianlaw has long recognized the intimate link between certain civilians and armed forces in theconduct of hostilities by providing for prisoner-of-war (POW) status for captured supply con-tractors, war correspondents, members of labor units, civilian crews of military and civilian


104 Geneva Convention No. III, supra note 10, Arts. 4(4), (5); see also Lieber Code, supra note 44, Art. 50; Projectof an International Declaration Concerning the Laws and Customs of War (Brussels Declaration), Aug. 27, 1874,Art. 34, 65 BRIT. FOREIGN & ST. PAPERS 1005 (1873–74), 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 theLaws 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 145–46.106 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 effectis morally acceptable; the intention of the actor is good; and the good effect is sufficiently good to compensate forthe evil effect. JOHNSON, supra note 81, at 131–34; WALZER, supra note 78, at 153. The proportionality principle isreflected in Article 51 of Protocol I, in which the actual harm prohibited is an “indiscriminate attack” when it “maybe expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, . . . which wouldbe 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 termfor peacetime and armed conflict, respectively. In peacetime assassination is normally associated with the illicitkilling of government officials, while in armed conflict the killing is linked to treachery regardless of the status ofthe victim. See Michael N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 YALE J. INT’LL. 609, 633 n.120 (1992) (stating: “The peacetime prohibition serves to protect individuals involved in interna-tional affairs. . . . The war prohibition focuses on the method used to kill, not on the legitimacy of the target.”); seealso W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, ARMY LAW., Dec. 1989, at 4. Underthis interpretation, therefore, the intentional killing of a civilian not taking a direct part in hostilities without anyact 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 anyeffect to whether it will possibly prolong the conflict. See BRUCE BERKOWITZ, THE NEW FACE OF WAR 127–29 (2003);ALBERICO GENTILI, DE IURE BELLI LIBRI TRES 167 ( John C. Rolfe trans., Carnegie ed. 1933) (1612). Support for assassi-nation is often based on the argument that striking at those directly responsible for the conflict avoids the deathof “innocents,” including members of the military. Id. at 167. On assassination generally, see THOMAS, supra note 77,at 47–85. 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 INT’L L. STUD. 139, 158 (2002) (indicating that “a civilian member of the political leadership does not becomea military objective by himself and cannot be targeted away from such objective”). In addition, targeting decisionsshould not depend on the constitutional arrangements of a particular country. In that respect, it is not uncommonfor 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 INT’L L. STUD. 19, 20, 25 (2002). In such situa-tions 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.

aircraft, and the crews of the merchant marine.104 The close connection between these civil-ians and military operations, and the often consensual nature of their involvement in the formof contracts, make it difficult to argue that targeting decisions will always be significantly influ-enced by their presence in the vicinity of the military objective.

Civilians such as industrial workers have often prompted moral questions concerning theirdegree of contribution to the war effort.105 Additional Protocol I specifically protects themfrom 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 contempo-rary language is more generally called the “principle of proportionality.”107 According to thisprinciple, civilians who are protected and immune from intentional direct attack may stillbe injured or killed if the military objective is determined to be sufficiently important. Muchof the discussion of targeting under international humanitarian law has traditionally concen-trated on the proportionality test and potential collateral damage to civilians. The currentincreased scrutiny of the issue of specifically targeting individuals has resulted in questionsas to the kind of action that constitutes assassination108 and, if legal, whether it can be consid-ered an effective means of conducting operations.109

The outcome of that debate does not alter the fact that persons taking a direct part in hos-tilities are subject to being lawfully targeted by the opposing force. Under both AdditionalProtocols, the direct involvement of civilians in hostilities does not affect their legal status, butit does mean that they will lose the protection of that status and could be targeted.110 Conse-quently, the principle of distinction is perhaps more accurately described as distinguishingbetween combatants, legal or otherwise, and those civilians who do not take a direct part inhostilities.


111 See AMNESTY INTERNATIONAL, ISRAEL AND THE OCCUPIED TERRITORIES: STATE ASSASSINATIONS AND OTHER UNLAW-FUL KILLINGS 29 (AI Index No. MDE 15/005/2001, Feb. 2001); see also MCKEOGH, supra note 60, at 140 (interpretingProtocol 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, 118–20 (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 onallegations of summary executions and abuse that occurred after the participants were captured. See also Prose-cutor v. Tadi , Opinion and Judgment, No. IT–94–1–T, 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 capturedor detained because “[w]hatever their involvement in hostilities prior to that time, . . . [they] cannot be said tohave 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 move-ment, or failure to comply with the group characteristics of combatancy set out in Geneva Convention No. III, supranote 10, Art. 4(2) and Protocol I, supra note 42, Art. 43. Further, failure to meet the requirements of the secondsentence of Article 44(3) of Protocol I can result in the loss of POW status, although Article 44(4) provides thatsuch persons are to be “given protections equivalent in all respects to those accorded to prisoners of war.” Six criteriaare relevant to the determination of combatant status. It has been suggested that the first three—being organized,being under responsible command, and belonging to a party to the conflict—apply to the group and not to indi-viduals. The remaining criteria—displaying a distinctive sign, carrying weapons openly, and complying with thecustoms and law of war—are both group and individual in nature. G. I. A. D. Draper, The Status of Combatants and theQuestion of Guerrilla Warfare, 1971 BRIT.Y.B. INT’L L. 173, 196–97. However, scholars have found it difficult to agreeon which of the conditions are collective and which individual. According to one interpretation of Additional Pro-tocol I, status cannot be denied on a group basis for a failure by an armed force to enforce compliance with inter-national humanitarian law, see, e.g., MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF, NEW RULES FORVICTIMS OF ARMED CONFLICTS 238–39 (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 onlyin 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 themonitoring and enforcement of human rights constitute what is, to a certain extent, a discrete public order system”).

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 timeswhen 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 unin-volved civilians, this interpretation might erode the humanitarian shield extended to civiliansunder Additional Protocol I because groups could take advantage of it by planning operationswhen not bearing arms or overtly conducting operations. Concern has long been expressedover the idea of such a “revolving door” of protection.112 Unfortunately, there is limited judi-cial guidance on this issue, as the case law has primarily dealt with the killing of persons whowere hors de combat.113

The argument that civilians are protected unless engaged in overtly aggressive acts like carry-ing weapons may be particularly difficult to maintain where armed groups are technicallyaccorded civilian status by virtue of not being considered lawful combatants.114 To the extentthat civilians fulfill the same function as combatants, either in the armed forces or as partof the organization of an “illegitimate” nonstate actor, they are logically subject to targetingunder the same provisions of international humanitarian law.

The foregoing discussion demonstrates that the principles regarding targeting in armedconflict are directly affected by the nature of interstate conflict and the group role played bythe participants. In contrast, the human-rights-based normative framework focuses on theprotection of individuals115 and is predisposed to question any use of deadly force. The follow-ing 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 ruleof law.116 Its goal is strict control not only of force intended to kill, but also of any unintended


The term “extralegal killing” is used below synonymously with “extrajudicial” killing. “Extrajudicial” appears to haveits 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 permittingthe death penalty in certain respects. Much of the discourse of human rights emphasizes the controversial issueof judicially sanctioned killing. The term “extralegal” more directly reflects the scope of the authority to use forceunder 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 orto others, before using force to prevent escape. The Graham case sets out an objective standard of reasonablenessto consider if a suspect poses an immediate threat to the safety of police officers or others. This case law was reliedon by the Department of Justice in its review of the 1992 shooting of a suspect’s wife by an FBI sniper, in which itdetermined that rules of engagement directing the police that “deadly force can and should be employed” againstan adult male with a rifle if the shot could be taken without endangering any children were improper and failed tocomply with constitutional standards. U.S. DEP’T OF JUSTICE, REPORT ON INTERNAL REVIEW REGARDING THE RUBYRIDGE 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, 595–96, para. 100 (2001) (allegations by next of kin that pattern of con-duct 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.

outcome involving deprivation of life.117 Limiting the use of force to situations of absolutenecessity 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 dem-ocratic society.’ ”118

The different context in which force is normally applied within a state is also reflected inthe emphasis placed under the human rights framework on seizing an individual. For exam-ple, the U.S. Supreme Court stated in Tennessee v. Garner119 that “[t]he intrusiveness of a sei-zure by means of deadly force is unmatched. . . . The use of deadly force also frustrates theinterest 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 shoot-to-kill policy.121 All the same, the ability to seize an individual and to bring that person to jus-tice 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 notnormally encountered in external conflicts, even when nonstate actors such as terrorists areinvolved.

These strict human-rights-based standards of accountability find expression in the interna-tional principles on the use of force. The United Nations Basic Principles on the Use of Forceand Firearms by Law Enforcement Officials require the adoption of rules and regulationson the use of force and firearms;122 encourage the development and deployment of non-lethal incapacitating weapons;123 prescribe clear warning on the use of firearms unless inap-propriate;124 and state that firearms are to be used in a manner “likely to decrease the risk ofunnecessary harm.”125

Firearms may be employed intentionally only “when strictly unavoidable in order to protectlife.”126 Force, including firearms, may be used only “if other means remain ineffective orwithout any promise of achieving the intended result.”127 Circumstances such as politicalinstability or any other public emergency cannot be invoked to justify departing from the


128 Id., para. 8.129 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, 944–45, para. 91 (1999) (holding that the lack

of a postmortem or other forensic examination and the failure to question personnel involved in the operation wereindicative of an improper investigation); see also Gül v. Turkey, 34 Eur. H.R. Rep. 719, 744–46, paras. 88–95 (2000).

principles.128 Strict accountability for the use of firearms is called for by requirements to setup a system of reporting whenever law enforcement officers use such weapons and to reportany incident of death or injury caused by the use of force.129 Law enforcement officers mustbe held accountable for the firearms and ammunition issued to them.130

Governments, for their part, must provide adequate training and establish effective report-ing and review procedures.131 In addition to making an independent administrative or pros-ecutorial review available, governments should enable persons affected by the use of forceto access an independent process, including a judicial process.132 Superior officers are to beheld responsible if they know or “should have known” that subordinates had resorted to theunlawful use of firearms and “they did not take all measures in their power to prevent, sup-press or report such use.”133 Governments are to ensure that any arbitrary or abusive use offorce and firearms by law enforcement officials is punished as a criminal offense.134 Immunityshall be extended to law enforcement personnel who refuse to carry out an order contraryto these principles.135 Finally, the defense of superior orders cannot be claimed if the order wasmanifestly 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 Preven-tion and Investigation of Extra-Legal, Arbitrary and Summary Executions.137 These principlesemphasize the protection of evidence of the crime scene, including by conducting an ade-quate autopsy.138 Both sets of principles demonstrate the extent to which the human rightsprocess seeks to limit the use of force and stresses accountability.

Human rights law devotes particular attention to “an effective official investigation whenindividuals have been killed as a result of the use of force.”139 The investigation is aimed atensuring that domestic laws safeguarding the right to life are properly implemented and thatstate 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 forceis reflected in the decision of the European Court of Human Rights in McKerr v. United King-dom, where the Court found that this expectation was implied in the European Conventionon Human Rights.141 The Court further stated that no matter what mode of investigation isemployed, the authorities must act on their own initiative “once the matter has come to theirattention. They cannot leave it to the initiative of the next of kin either to lodge a formalcomplaint or to take responsibility for the conduct of any investigative procedures.”142 Thisprocess involves taking reasonable steps to secure evidence, such as “eye witness testimony,forensic evidence and, where appropriate, an autopsy which provides a complete and accuraterecord of injury and an objective analysis of clinical findings, including the cause of death.”143


144 McKerr, 34 Eur. H.R. Rep. at 599, para. 113. 145 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 603–12, paras. 124–56.151 Id. at 612–13, paras. 157–58.152 McCann, 21 Eur. H.R. Rep. 97 (1995). 153 G. DAVIDSON SMITH, COMBATING TERRORISM 149 (1990).

An effective investigation must be “capable of leading to a determination of whether theforce used in such cases was or was not justified in the circumstances”144 and should be con-ducted 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 theirpunishment.145 The requirement of independence means not only a lack of “hierarchicalor institutional connection but also a practical independence.”146 Further, the strict scrutinyof the use of lethal force is not limited to the actions of the state agents who “administer theforce, but also all the surrounding circumstances including such matters as the planning andcontrol of the actions under examination.”147 Reviewing issues like planning and control intro-duces 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 mustbe subjected to a “sufficient element of public scrutiny . . . to secure accountability in prac-tice as well as in theory.”148 The next of kin or the victim must be involved “to the extent neces-sary to safeguard his or her legitimate interests.”149 Examples of the mechanisms of reviewinclude police investigations, an independent prosecutor, a coroner’s inquest, and criminalproceedings.150 However, even where a multilayered process is in place, it may not meet thestandards of independence and transparency required under a human rights supervisory frame-work. For example, in McKerr the lack of an independent police investigation, the decision ofthe director of public prosecutions not to explain why certain charges were not pursued, thelimited role of the inquest, the nondisclosure of witness statements, the withholding of privi-leged information by government officials, the inability to compel the police officers to attendthe inquest, and delays in both the police investigation and the inquest—all combined inthe 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 commit-ment 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 increasedlevels of violence associated with terrorism have presented a special challenge to human rightssupervisory bodies. The stress on the accountability process was evident in the decision of theEuropean Court of Human Rights in McCann and Others v. United Kingdom,152 a case that involvedthe 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 auseful 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 personnelof a planned IRA car bomb attack against a military unit’s ceremonial parade assembly area.The goal of the military’s participation was to assist the police in arresting an IRA Active Ser-vice Unit. As the operation unfolded, however, all three suspects were shot multiple times bymembers of the Special Air Service and killed. The soldiers had feared that the terrorists weregoing to set off the bomb by means of a push-button remote device, but when the operationwas over, no weapons or detonating devices were discovered.


154 McCann, 21 Eur. H.R. Rep. at 173, para. 200; id. at 179, para. 5 (joint dissenting op.). The majority deter-mined 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 underthe European Convention on Human Rights.

155 Id. at 174, 176–77, paras. 205, 213.156 Id. at 176, para. 212.157 Id. at 180, para. 8.158 Id. at 180–81, 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 “tar-

geted killing”:

“Targeted killing is not only very valuable,” Maj. Gen. Giora Eiland, chief of planning and policy in the Israelimilitary and one [of] its most senior officers, said in a recent interview. “If we could not use this method in areaslike Gaza, where we do not control the territory . . . we could not fight effectively against terrorist groups.”

Moore, supra note 53.

A badly divided court (10-9) agreed that the actions of the soldiers in shooting to kill didnot violate the right to life, as they had honestly believed it necessary to use lethal force “inorder to safeguard innocent lives.”154 Yet the Court disagreed on whether the operation wascontrolled 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 miscalcu-lation. It also determined that the authorities had failed to make allowances for alternativeassumptions about the threat posed by the terrorists.155 Further, the majority ruled that thesoldiers’ reflex action in shooting to kill “lacks the degree of caution . . . to be expected fromlaw enforcement personnel in a democratic society.”156 In contrast, the minority believed thatassessments of the situation should avoid “the temptations offered by the benefit of hind-sight,”157 that the authorities had been forced to plan and act on the basis of incomplete infor-mation, and that the soldiers had faced a potentially devastating threat.158 In addition, the sus-pects “had chosen to place themselves in a situation where there was a grave danger” that thesoldiers’ obligations to protect the lives of the suspects as well as civilians and military mightconflict.159 Finally, the minority found strong evidence of a major terrorist attack in the worksand observed that simply stopping the terrorists at the border would have increased the riskthat 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 ofcontrol. The majority thought the situation should be controlled by keeping the terrorists outof the jurisdiction, largely because of the danger they posed to the citizens of Gibraltar. Thatconsideration, in the Court’s view, outweighed whether there would have been sufficientevidence to detain and arrest the suspects at the border.161 Unfortunately, the majority did notconsider the severity of the ongoing threat posed by the terrorists. The minority appears tohave concluded that control was best exercised by allowing the terrorists to enter the juris-diction. They could then be stopped when a sufficient basis to take action against them wasestablished. This course exposed innocent civilians in Gibraltar to greater risk and increasedthe likelihood that deadly force would be used.

These different approaches highlight the traditional domestic focus of law enforcementand the jurisdictional limitations associated with most criminal law. However, in the contem-porary 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 introducea measurably higher risk. Ultimately, neither option may appear attractive from a security per-spective. As a result, the state would inevitably be placed in the position of relying on anotherstate 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


163 Michael J. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, 91AJIL 417, 423 (1997).

164 Protocol I, supra note 42, Arts. 86, 87; see also Prosecutor v. Delali , supra note 57, paras. 182–99. 165 ICC Statute, supra note 27, Art. 33; see also Prosecutor v. Erdemovi , Sentencing Judgment, No. IT–96–22–Tbis

(Mar. 5, 1998).166 Protocol I, supra note 42, Art. 43.

The limitations of the McCann case are not pointed out here to suggest that military forcesemployed in a domestic law enforcement role should not be subjected to a human-rights-based accountability framework, but simply that the nature of the threat and the resulting cir-cumstances 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 notbe amenable to a human-rights-based review process. For example, when the violence usedby terrorists reaches the level inflicted by Al Qaeda on September 11, 2001, state action underhuman 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 mayhave to be prepared to consider shooting down a hijacked civilian plane. Factors to be takeninto 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 stateor private property) and people (military or civilian). Finally, a proportionality assessmentwould have to be made regarding the number of innocent civilians who would be killed if theplane were shot down. State authorities would probably be under pressure to reach a decisionwith little time for reflection and limited information about the intentions and motivationsof the hijackers.

Anyone considering such a scenario in terms of a human-rights-based accountabilityprocess would in effect have to apply armed conflict targeting principles. Thus do acts ofterrorism on the scale now threatened bring new challenges to the traditional human rightsconcepts regarding the use of force. Moreover, the attempt to apply human rights standardsto a situation of armed conflict could have an adverse impact on the integrity and strength ofpeacetime norms.163 Rather than attempt to extend human rights norms to an armed conflictscenario, the appropriate approach is to apply the lex specialis of humanitarian law. Forceapplied in accordance with humanitarian law could not result in extralegal killing since itwould not constitute an arbitrary deprivation of life. Domestic courts and review bodies arecapable of applying these humanitarian law criteria; however, it will require a way of thinkingabout both the threat and the state’s reaction to it that differs from traditional law enforce-ment approaches.

VI. ACCOUNTABILITY AND CONFLICT

Like the human rights framework governing the use of force, international humanitarianlaw has an accountability structure. The principle of criminal responsibility, including com-mand responsibility, is well established under international humanitarian law.164 The doctrineof superior orders and the obligation to disobey manifestly illegal orders165 are also funda-mental tenets of the law regulating armed conflict. A condition precedent for attaining combat-ant status is the existence of a responsible command and a disciplinary system that enforcescompliance with the rules of international law in hostilities.166 In addition, states commonly issuestanding 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 individ-ual criminal responsibility through the definition of international crimes and the creationof ad hoc and permanent international criminal courts. In addition, the International Courtof Justice remains available, subject to special jurisdictional limitations, to deal with disputesbetween states. Additional Protocol I to the 1949 Geneva Conventions makes provision for an


167 Id., Art. 90. For a general discussion of the means available to prevent breaches of international humani-tarian 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 ChristopherGreenwood, 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 247–51.

169 Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Governmentof the State of Eritrea, Dec. 12, 2000, Art. 5, 40 ILM 260 (2001).

170 Prosecutor v. Tadi , supra note 8, paras. 96–127. 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 CitizensResponsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between1 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 Françoise 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 266–75.175 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 INT’L 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 Measures—Detainees in Guantanamo Bay, Cuba

(Apr. 15, 2002), 41 ILM 1015, 1019 (2002).

International Fact-Finding Commission.167 States can also attempt to use traditional meansof enforcing compliance with international humanitarian law, such as reprisals, although theability to engage in reprisals has been significantly limited by developments in internationalhumanitarian law.168 The accountability structure can be enhanced by the development ofneutral claims commissions to deal with claims arising from “violations of international human-itarian law, including the 1949 Geneva Conventions, or other violations of international law.”169

The effort to enhance the accountability framework under international humanitarianlaw has not been limited to situations of international armed conflict. The Appeals Cham-ber’s decision in Prosecutor v. Tadi ,170 the Statute of the International Criminal Tribunal forRwanda,171 and the Rome Statute of the International Criminal Court172 recognize the needto expand the reach of the accountability process under humanitarian law to internal con-flicts. Nevertheless, within the international humanitarian law normative framework, there isno 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 toboth international and noninternational armed conflict by venturing into what has tradi-tionally 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 competentto apply international humanitarian law in cases like Abella v. Argentina175 and Coard v. UnitedStates.176 The Abella case involved the 1989 seizure of a military barracks by forty-two armedattackers during an abortive coup attempt in Argentina, and the Coard case dealt with a chal-lenge by seven persons who were detained by the United States during the 1983 military oper-ation in Grenada. The decision by the Commission in Abella has been the subject of criticalcomment.177 The United States objected in the Coard case to the competence of the Commis-sion to apply international humanitarian law.178 The United States has similarly challengedthe Commission’s authority to issue precautionary measures, asking that the legal status ofQaeda and Taliban detainees at Guantánamo Bay be determined by a competent tribunal.179

This position is based in part on the argument that “the Commission lacks the jurisdictionalcompetence to apply international humanitarian law.”180


181 Ergi v. Turkey, 32 Eur. H.R. Rep. 388 (1998).182 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.

In contrast, the European Court of Human Rights has made some limited direct use ofinternational humanitarian law. For example, in Ergi v.Turkey181 the Court looked at whethergendarmes had failed to take “all feasible precautions in the choice of means and methods ofa security operation” involving the placement of an ambush.182 This use of the language ofinternational humanitarian law resulted from the direct interface that can occur between thatlaw and human rights norms when dealing with terrorist activity. More recently, in Bankovi v.Belgium and Others,183 a group of Yugoslav citizens challenged NATO’s bombing of the Serbianradio station during the 1999 Kosovo campaign. The government respondents argued, interalia, that international humanitarian law, the International Criminal Court for the FormerYugoslavia, and the International Criminal Court were created to deal with the conduct ofstates engaged in military action;184 but the Court did not rule on that issue, as it ultimatelyfound it did not have jurisdiction on other grounds.

Despite ongoing controversy over the involvement of human rights bodies in applying inter-national humanitarian law, it has been said to “fill an institutional gap and give internationalhumanitarian law an even more pro-human-rights orientation.”185 This is a “gap” in whichhuman rights nongovernmental organizations (NGOs) and the media are taking increasinginterest. The resulting public scrutiny and movement by states to address that concern haveconsiderably influenced the way modern military forces conduct hostilities.186

Given the degree of interaction between international human rights law and humanitarianlaw, and their sharing of many principles, it may become more and more difficult to suggestthat 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 discretebody of law for the governance of most interstate conflict, this view must inevitably be recon-ciled with situations where a state continues to exercise forms of internal governance duringarmed conflict. Although the Martens clause might be interpreted as denying the existenceof a gap in the application of humanitarian principles during armed conflict, such an approachdoes not address what “the usages established among civilized peoples, from the laws ofhumanity, and the dictates of the public conscience”187 actually means when dealing withsituations more commonly associated with such internal governance. As noted above, thetwo normative frameworks may interact directly in noninternational armed conflict, the gov-ernance of occupied territories, and countering the contemporary threat of internationalterrorists operating within a state. The long-term solution to this issue may not be to “bar thedoor” to human rights principles and their advocates but, rather, to ensure that human rightsaccountability mechanisms take into consideration both the nature of warfare and the uniqueaspects of international humanitarian law.

VII. THE DIRECT INTERFACE

The direct interface between humanitarian law and human rights law with respect tointernal governance can be seen in the potential involvement of law enforcement author-ities in countering violence that reaches a level bordering on armed conflict. One way the divi-sion between the two normative legal regimes is effected is by attempting to separate policeforces from forces with the status of combatants. For example, Article 43(3) of Additional


188 Protocol I, supra note 42, Art. 61(1)(k). These civil defense personnel lose their protected status if they per-form 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 Asbjørn 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 681–84, paras. 152–53, the Inter-American Commission on Human Rights wasof the view that common Article 3 did not extend to “riots, mere acts of banditry or an unorganized and short-livedrebellion”; however, the Commission also acknowledged that the line separating an especially violent incident ofinternational disturbances from the application of international humanitarian law principles “may sometimes beblurred and, thus, not easily determined.” See also Hampson, supra note 173, at 67–68, for a discussion of the scopeof common Article 3 of the 1949 Geneva Conventions.

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 thearmed forces would remain focused on law enforcement functions. In dealing with civil defense,Additional Protocol I contemplates the deployment of lightly armed personnel (includingmembers of military units) who are not considered part of the armed forces, but are taskedwith “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 Conventionstipulates that public officials, which includes police officers, shall maintain their status afteroccupation has commenced. Nevertheless, the potential remains for a significant interfacebetween ordinary law enforcement and actual armed conflict.

The type of conflict most often referred to as one where human rights law and humani-tarian law interact is noninternational armed conflict. Common Article 3 of the 1949 GenevaConventions has been described as a “Convention in miniature.”189 It establishes minimumstandards of humane treatment for internal armed conflicts. In addition, a person can benefitfrom international humanitarian law because it “does not permit derogation on grounds ofemergency, 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 non-derogable core, continues to apply in times of armed conflict, gaps in protection under thelaw of war can be filled in some circumstances.”191

The exact nature and extent of this interface is not always clear. Common Article 3 doesnot provide guidance as to the level of conflict that is required before it can be invoked. Incontrast, Additional Protocol II, which supplements common Article 3, applies when dissi-dent armed forces or other organized groups under responsible command exercise “suchcontrol over a part of [a contracting party’s] territory as to enable them to carry out sustainedand concerted military operations,”192 although the Protocol does not apply “to situations ofinternal disturbances and tensions, such as riots, isolated and sporadic acts of violence andother acts of a similar nature.”193 In general, one finds a reluctance to extend this minimumstandard to the application of common Article 3 of the Geneva Conventions, probably outof concern that it would adversely affect efforts to extend humanitarian protection to victimsof an internal armed conflict.194

There is an ongoing tension between efforts to incorporate humanitarian standards intononinternational armed conflicts and the view of states that such conflicts involve the legiti-mate suppression of criminal activity. Common Article 3 acknowledges that the legal status ofthe parties is not affected by its provisions, and Additional Protocol II confirms the role ofthe state in using legitimate means to maintain or reestablish “law and order” or to defend


195 Protocol II, supra note 27, Art. 3(1).196 Prosecutor v. Tadi , supra note 8, paras. 96–127.197 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 andHerzegovina Agreement No. 1, which states, “Captured combatants shall enjoy the treatment provided for by theThird Geneva Convention.” Agreement No. 1, May 22, 1992, Bosn.-Herz., §2.4, reprinted in MARCO SASSÒLI &ANTOINE A. BOUVIER, HOW DOES LAW PROTECT IN WAR? 1112, 1115 (1999).

198 W. J. Ford, Resistance Movements and International Law (IV), INT’L 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 thelaw 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 theFourth Geneva Convention take precedence regarding specific measures which are justified on the basis of theseprovisions.” Id. at 11.

203 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. 54, 64, 6 UST3516, 75 UNTS 287.

national unity and territorial integrity.195 Nevertheless, principles of customary internationallaw have been recognized as applicable to noninternational armed conflict196 and it is opento the parties to negotiate special arrangements to bring the remainder of each Conventioninto force. This approach has been used to obtain prisoner-of-war treatment for capturedpersonnel.197 In addition, as noted, Additional Protocol II does provide for the protection ofcivilians “unless and for such time as they take a direct part in hostilities.” As a result, in makingdecisions on targeting, attacks on persons must be limited to those participating directly inthe conflict.

The introduction of international humanitarian law norms into internal conflicts requiresthe consideration of “two legal systems—the national and the international—which have notbeen harmonized, side by side.”198 The lack of a clear line of demarcation between states ofemergency and the point at which an armed conflict starts makes it difficult to assess whenconsideration of human rights norms should end and the application of international human-itarian law norms should begin. Criteria such as levels of violence and a state’s ability toexercise normal control, particularly over territory, offer some guidance.199

In Abella the Inter-American Commission on Human Rights relied on the “concerted natureof the hostile acts undertaken by the attackers, the direct involvement of governmental armedforces, and the nature and level of the violence” in deciding that international humanitarianlaw applied.200 However, the involvement of military forces cannot be understood as auto-matically determining that an armed conflict exists. In McCann the European Court of HumanRights was careful to note that the use of the specialized military forces was only natural “inorder 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 humani-tarian law applies since that law introduces broader authority to use force, including thetargeting of individuals.

Another challenge in trying to ascertain when law enforcement rules end and those gov-erning armed conflict begin arises with respect to occupied territory. The development of theFourth Geneva Convention constituted one of the most noteworthy advances in internationalhumanitarian law of the twentieth century. The Convention operates as part of the lex specialisof international law, but it also incorporates many human rights principles.202 It clarifies therole of the occupier regarding civilians falling under its jurisdiction and requires the main-tenance, with some exceptions, of the penal laws, tribunals, judges, and public officials ofthe occupied territories.203 The occupier becomes responsible for maintaining law and order


204 Hague Regulations, supra note 104, Art. 43.205 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 252–55.206 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, 78–79 (1995). 208 Francis Lieber, Guerrilla Parties Considered with Reference to the Laws and Usages of War, reprinted in RICHARD

SHELLY HARTIGAN, LIEBER’S 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 indirectwarfare in occupied territory, as it still required the wearing of a fixed, distinctive sign. See also Protocol I, supranote 42, Arts. 43, 44.

in occupied territories.204 These requirements, in turn, point to a human rights regime ofaccountability to govern the law enforcement activities of security officials.

In some respects the role performed by the occupier resembles governance during nonin-ternational armed conflicts, as the task can range from ordinary policing to direct participa-tion in combat. It has been indicated that a human rights framework may be applied as amatter of law to areas of occupation because of the nature of the control exercised by theoccupying 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 mayresult in the extraterritorial application of the human rights regime. However, the Court wasalso careful to note that the Convention is a constitutional document operating in a regionalcontext and “was not designed to be applied throughout the world, even in respect of the con-duct of Contracting States.”205

In Coard the Inter-American Commission on Human Rights interpreted its jurisdiction asextending to areas where “the person concerned is present in the territory of one State, butsubject to the control of another State—usually through the acts of the latter’s agents abroad.”206

Similarly, Professor Meron has argued that the International Covenant on Civil and PoliticalRights should be construed as having extraterritorial application.207 However, even if it weredetermined that a human rights system of accountability did not apply as a matter of law tooccupied territory, it would ordinarily be logical as a matter of policy to apply human rightsnorms to an occupier’s policing function.

The use of force in occupied territory will not always be amenable to the supervision ofa human rights framework. The Fourth Geneva Convention has to be read with the under-standing that it focuses on the protection of civilians. Neither that Convention nor the pro-visions of the 1907 Hague Conventions on occupation encompass all aspects of internationalhumanitarian law applicable to occupied territory. While arrest and prosecution are an avail-able option for dealing with threats to security, the Geneva Convention does not give any con-crete directions on how to confront resistance movements militarily. An occupying poweris going to face situations of common criminal activity that are more suitable for a humanrights regime of accountability. Such situations could involve the operations of the civilianpolice 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 thedirect participation of both combatants and civilians. The term used by Francis Lieber forresisters in occupied territory was “war-rebel,” which meant one who “return[s] to war afterhaving been conquered.”208 After a limited attempt to extend prisoner-of-war status to mem-bers of organized resistance movements in the Third Geneva Convention, Additional Proto-col I now provides less stringent criteria for them to gain combatant status.209 Operationsagainst those combatants are covered by international humanitarian law. A similar conclusioncan be reached about resistance movements whose members are unprivileged belligerents.While their crimes are considered domestic in nature, unprivileged belligerents can pose thesame 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.


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 TerritoriesSince 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 controlof the “occupied territories,” although the government has indicated its willingness to follow the humanitarianprovisions of the Convention. The Israeli government has not contested the application of the 1907 Hague Regula-tions to those areas. DAVID KRETZMER, THE OCCUPATION OF JUSTICE 32–34 (2002); see also MICHAEL J. KELLY,RESTORING AND MAINTAINING ORDER IN COMPLEX PEACE OPERATIONS 156–59 (1999). As Adam Roberts notes, themajority of the international community, and of international legal opinion, has not accepted that the FourthGeneva Convention is not formally applicable in that case. Adam Roberts, What Is a Military Occupation? 1984 BRIT.Y.B. INT’L L. 249, 282. Recognition of the application of international humanitarian law is reflected in the 2002United Nations report on events in Jenin and other Palestinian cities. Report of the Secretary-General PreparedPursuant to General Assembly Resolution ES–10/10, UN Doc. A/ES–10/186, at 5, paras. 11–13; see also AMNESTYINTERNATIONAL, ISRAEL AND THE OCCUPIED TERRITORIES: SHIELDED FROM SCRUTINY: IDF VIOLATIONS IN JENIN ANDNABLUS 60–65 (AI Index No. MDE 15/143/2002, Nov. 2002); JENIN: IDF MILITARY OPERATIONS, 14 HUMAN RIGHTSWATCH, ISRAEL, NO. 3(E), May 2002, at 10–11, available at <http://hrw.org/reports/2002>.

213 See AMNESTY INTERNATIONAL, supra note 212, at 62 (indicating that “persons who take direct part in hostilitiesmay temporarily lose their status as protected persons, but they do so only for such time as they take direct partin hostilities”). But see Parks, supra note 112, at 118–20.

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.

The challenge lies in separating incidents that are simply criminal in nature from thosethat form part of the armed conflict. The difficulty of separating civil unrest from ongoingarmed resistance has been graphically illustrated in the attacks on forces of the United King-dom and the United States following the cessation of major combat operations in Iraq onMay 1, 2003.210 Criteria not that dissimilar to those used to identify noninternational armedconflicts might be employed, including the nature of the opposing force (i.e., Is the grouporganized to conduct hostilities?), the level of violence used by the group, and the degreeof freedom of the group in terms of operating outside the occupying power’s control.

Situations involving lengthy periods of occupation, such as in the Middle East, furthercomplicate attempts to resolve the interface between human rights law and internationalhumanitarian law.211 Long-term governance might inevitably create the expectation that inter-national human rights norms associated with peaceful governance will apply. Yet even in theIsraeli/Palestinian conflict it is widely recognized that international humanitarian law appliesin the occupied territories.212 As a result, in addition to the provisions protecting persons inoccupied territories found in the 1907 Hague Regulations and the Fourth Geneva Conven-tion, the rules on the methods and means of warfare will be applicable. International humani-tarian law would therefore govern the use of force relating to the conduct of hostilities. Thequestion is not necessarily whether individuals will be targeted but, rather, whether the tar-geted person is “taking a direct part in hostilities” and whether operations are conductedaccording to the laws governing armed conflict.213

The third situation involving a direct interface between human rights law and internationalhumanitarian law arises in the context of the post–September 11 domestic operations con-ducted as part of the “war on terrorism.” Many countries have been engaged in an interna-tional armed conflict in Afghanistan and elsewhere, such as on the high seas. Even though theacts of terrorism being defended against are instigated and planned offshore, they can mani-fest themselves as concrete threats arising from within the state. As President George W. Bushhas 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 coun-tering the terrorist threat domestically. In the United States the National Strategy for HomelandSecurity identifies six critical mission areas: intelligence and warning, border and transporta-tion security, domestic counterterrorism, protecting critical infrastructure, defending againstcatastrophic terrorism, and emergency preparedness and response.215 The Department of


216 Id. at 25–28; U.S. Dep’t 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 securethe United States from terrorist attacks has included the reorganization of government departments into a Depart-ment of Homeland Security.

217 Dep’t of Foreign Aff. & Int’l Trade, Canada’s Actions Against Terrorism Since September 11th—Backgrounder,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, Post–September 11th—The Fight Against Terrorism, at <http://www.rcmp-grc.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 combi-nation “establish the considerable range of a president’s 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 armedforces 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).

Justice and the Federal Bureau of Investigation remain the leading law enforcement agenciesfor 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 re-sponders to threats presented by Al Qaeda.217 Overall, the mobilization of national policingassets represents a new form of participation in “conflict” that is significantly different fromthat taken in World War II. It is also an approach that appears to run counter to the human-itarian law attempt in Additional Protocol I to separate armed forces from the exercise of thepolicing function.218

The law enforcement focus of the response to international terrorism emanates directlyfrom the nature of the threat. Terrorist groups like Al Qaeda are private nonstate actors whocarry out part of their operations within the state. They rely on concealment within the pop-ulation both for protection and for carrying out their terrorist acts. In international humani-tarian law terms, their status is that of unprivileged belligerents and it does not changewhether they are operating outside or inside a state. Where necessary, Al Qaeda has beentargeted internationally under the governing framework of international humanitarian law.However, despite being carried out in the context of an armed conflict, the terrorist acts them-selves contravene the domestic laws of the state in which they are performed. The internallaw enforcement response is consistent with the nature of the threat and the control exer-cised by the state domestically. Further, it directly reflects the effectiveness of internal statemechanisms in dealing with criminal activity within national borders. The use of domesticpolice and counterintelligence agencies also offers the potential to minimize violence andtherefore enhance political acceptability, particularly in democracies.

While the military has a role to play in domestic law enforcement, in many states it does notnormally represent the most effective means of countering the threat. This limitation does notmean 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 attackas 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 tocounter the new terrorist threat would usually bring the governance of the use of force com-fortably within the human-rights-based structure. Still, assessing when the threat can justify theuse of force remains a challenge under international humanitarian law and, like decidingto use armed force internationally, appears to be primarily an executive function based onthe distribution of authority under domestic constitutional arrangements.219

The thresholds to be applied in deciding how to counter domestic threats posed byinternational terrorist groups like Al Qaeda are not dissimilar to the types of decisions thatmust be made for noninternational armed conflicts and occupied territories. The transitionto a response governed by international humanitarian law is linked directly to the nature ofthe threat and the level of violence. The state’s response would be controlled in practical


220 Protocol I, supra note 42, Art. 90. Human rights principles emphasize transparency in the conduct of investi-gations. 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 forceduring demonstrations by Iraqi civilians. Amnesty International, Press Release, Iraq: Death of Civilian DemonstratorsMust Be Investigated (Apr. 30, 2003) (AI Index No. MDE 14/103/2003). However, the ability of the parties to a con-flict to limit public disclosure of the findings of the Fact-Finding Commission could hamper its effectiveness. Pro-tocol I, supra, Art. 90(5)(c).

221 Robert Kogod Goldman, International Humanitarian Law: Americas Watch’s Experience in Monitoring InternalArmed Conflicts, 9 AM. U. J. INT’L L. & POL’Y 49, 51 (1993).

222 Abella, supra note 113, at 698, para. 175.223 Zegveld, supra note 177, at 511 n.21.

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 force-fully with international terrorists within the more restrictive human rights framework. Thus,the deadly force against those terrorists would not be used under international humanitarianlaw 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 lawand 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 outin the context of an armed conflict. In these situations the nature of the threat and the abilityof the state to employ normal mechanisms of control associated with law enforcement andpeaceful governance directly affect the response available to it. A major advantage of usingforce 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 caninteract. A particular strength of the human rights process has been the development of astrict accountability framework. The present interest expressed by human rights bodies ininternational humanitarian law may force the generation of a stronger process of account-ability than is currently available. For example, use might be made of the International Fact-Finding Commission provided for under Additional Protocol I.220

As human rights organizations increasingly become involved in issues pertaining to inter-national humanitarian law, two main areas may have to be addressed: clarification of the rolesperformed by various mechanisms of accountability and adjustment of accountability princi-ples to reflect the nature of the armed conflict in question. The human rights frameworkdoes operate in accordance with certain traditional limits that may bear on the role it can playin governing armed conflict. For example, the fact that human rights law is designed to func-tion in peacetime, contains no rules governing the methods and means of warfare, and appliesonly to one party to a conflict led at least one human rights nongovernmental organizationto look to international humanitarian law to provide a “methodological basis for dealingwith the problematic issue of civilian casualties and to judge objectively the conduct of militaryoperations by the respective parties.”221

Objectivity is particularly important. In the Abella case, the Inter-American Commission onHuman Rights declined to assess the petitioners’ motives for taking up arms because “as arule, its jurisdiction does not extend to the conduct of private actors which is not imputableto the State.”222 It has been noted that the “[a]pplication to only one party to the conflict, theState, may be considered as contradicting a basic principle of humanitarian law, accordingto which both parties to the conflict have equal rights and duties.”223 If a human rights bodydoes not also direct its attention to the actions of a nonstate actor in terms of compliance withinternational humanitarian law, it may leave the perception of not being evenhanded. Thebody may even come to be seen as a tool for restricting the activities of one party to a conflict.


224 Françoise Hampson, Using International Human Rights Machinery to Enforce the International Law of Armed Con-flicts, 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 CRISISOF IMPUNITY: THE ROLE OF PAKISTAN, RUSSIA, AND IRAN IN FUELING THE CIVIL WAR 18–22, 13 HUMAN RIGHTS WATCH,AFGHANISTAN, NO. 3 (C), July 2001, available at <http://www.hrw.org/reports/2001> (outlining the internationalhumanitarian 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 theepigraph to this article is taken from page 1 of the report.

227 Id. at 2.228 Id. at 2–3. The recommendations refer to standards of international humanitarian law. The link to human

rights norms appears to arise in the context of the occupying power’s obligation to restore and ensure public orderand safety, found in Article 43 of the Hague Regulations, supra note 104. The report states that “[a]chieving secu-rity must however be in conformity with international humanitarian law and human rights standards.” Id. at 3. Asnoted, it is not universally accepted that human rights norms apply as a matter of law, although logic points to theirapplication as a matter of policy, morality, and practicality.

229 Regarding the involvement of possible members of an organized resistance, the report quotes the mayor ofFalluja (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 Saddam’s birthday, some peoplein the cover of the demonstration, some Islamic extremists and also some believers in Saddam, wanted tocreate problems between Islamic extremists and American troops. . . Some of Saddam’s people carrying hispicture and some weapons like Kalashnikovs were benefiting from the slogans. They started to shoot at theschool. . . 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.

Other human rights bodies that may perform an investigatory role regarding the interna-tional humanitarian law regime are the ICRC and NGOs. While the ICRC is essential to main-taining standards of humanity in the midst of armed conflict, its focus on the victims of con-flict and the need to maintain confidentiality with the parties to the conflict limit the degreeto which it can publicize breaches of the Geneva Conventions.224 Human rights NGOs areplaying an increasingly important and effective part in pressuring for compliance with interna-tional humanitarian law. However, they may find that their effect is limited, like that of humanrights supervisory bodies, if they maintain a traditional human rights focus directed solely atthe actions of the state. In a positive development, NGOs are devoting more and more atten-tion 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 RightsWatch on two shootings of Iraqis by United States military forces in Falluja in late April 2003highlights the challenges that face NGOs in addressing alleged human rights abuses in thecontext of international armed conflict.226 The report manifests considerable effort to painta broad background, including interviews of both U.S. military personnel and local citizens.Ultimately, Human Rights Watch recommends a further “full, independent and impartialinvestigation.”227 Its report also reflects traditional human rights goals in seeking to holdpeople accountable under international humanitarian law. It recommends evaluating thecrowd control measures used by United States forces, assessing ways to avoid violence andminimize civilian casualties, determining whether the law enforcement training of the soldiersmeets the standards of international humanitarian law, and making the findings of theinvestigation public.228

What the report does not fully resolve is the impact of ongoing combat operations at thetime of the incidents and the “possible” activities of members of the Iraqi resistance who werealleged to have fired at the troops and fled.229 The report appears premised on the conclusionthat the occupying power had entered a postconflict stage and that the military personnelwere operating exclusively in a law enforcement role, despite having acknowledged the possiblepresence of armed resistance forces within the town and the crowd itself.230 In this incident


Notwithstanding the ongoing military operations, the FALLUJA REPORT, supra note 226, at 13, highlights the “lawenforcement” role of U.S. forces: “[T]he presence of provocateurs in the crowd does not negate the responsibilityof U.S. soldiers to prevent civilian casualties to the greatest extent possible, and to ensure that their response whencarrying out law enforcement functions is proportionate and discriminate.”

231 BASRA: CRIME AND SECURITY UNDER BRITISH OCCUPATION, 15 HUMAN RIGHTS WATCH, IRAQ, NO. 6 (E), June2003, at 19, available at <http://www.hrw.org/reports/2003> (noting that “by all accounts, the focus of coalitionforces was on force protection, . . . . responding robustly to any use of weapons, while essentially ignoring otherincidents of lawlessness and looting”).

232 Compare Convention on the Prohibition of the Development, Production, Stockpiling and Use of ChemicalWeapons 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 Court’s 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 ingeneral would not have to be interpreted in light of international humanitarian law. Frowein, supra note 202, at 12.

and other situations of occupation, the separation between a law enforcement role andoperations in armed conflict may not lend itself to being neatly drawn as the occupying powerstruggles to bring order out of chaos. Over the short term, the task can be complicated by suchfactors as operations against resistance members integrated into the ordinary civilian popu-lation; the need for the occupying power to exert control over territory that may not previ-ously have been the scene of fighting; the potential for significant levels of violence, partic-ularly the use of firearms; and the continuing need to maintain operational security and forceprotection.231

Furthermore, the presence, or even the potential presence, of firearms within a crowd cancall into question the application of many means of crowd control. In this regard traditionalhuman rights norms may not be readily adaptable to the complicated security situations thatoccur during international armed conflict. For example, the use of riot control agents as a less-than-lethal means of law enforcement in the midst of an ongoing armed conflict must bereconciled with the prohibition on their use as “a method of warfare.”232 These complicatingfactors present a formidable challenge to occupying forces in establishing a secure environ-ment and to human rights NGOs in reviewing the use of force.

An analysis that considered the interface between human rights and humanitarian lawbefore the International Court issued its advisory opinion in the Nuclear Weapons case233 sug-gested that since the concern of human rights supervisory mechanisms was the death or injuryrather than its cause, “the humanitarian lawyer will have to engage in intellectual gymnas-tics” to apply international human rights to targeting issues.234 The judicial acknowledgmentthat international humanitarian law constitutes an integral, but separate, part of the “rightto life” framework means that such machinations should not now be necessary. Internationalhumanitarian law has its own standards for assessing the legality of using lethal force, so thathuman rights advocates will have to become more comfortable with both the scope of thatlaw and its application to conflict.235 The positive effect that human rights norms can bringto international humanitarian law in respect of targeting will be directly related to how suc-cessfully the emphasis on accountability accommodates the differences between the two nor-mative frameworks.

An important distinction between human rights law and humanitarian law in terms of con-trolling the use of force is that the former seeks review of every use of lethal force by agentsof the state, while the latter is based on the premise that force will be used and humans inten-tionally killed. In practical terms, a human rights supervisory framework works to limit thedevelopment and use of a shoot-to-kill policy, whereas international humanitarian law isdirected toward controlling how such a policy is implemented.

These differences are reflected in the respective applications of the principle of propor-tionality. In the domestic context, the force used must be strictly proportionate to the aim to


236 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160–61, para. 149 (1995). 237 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 andfollowing up with a public postwar survey of the campaign’s impact on civilians.” That process would involve theintegration 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 warrantits inclusion in such an assessment.

240 However, as Hays Parks notes, there is no obligation to attempt to capture rather than attack an enemy incases of armed conflict. Parks, supra note 108, at 7 n.6. Here, a distinction has to be made between making a policychoice of seeking to arrest an enemy combatant (perhaps for intelligence purposes) and the issue of the legalauthority to use lethal force.

be achieved.236 Under international humanitarian law, the use of force against valid targetssuch as combatants and civilians directly participating in hostilities is not directly governedby proportionality. Although the methods and means of using force are not unlimited, em-phasis is placed on prohibiting “superfluous injury or unnecessary suffering.”237 In the contextof an armed conflict, proportionality is used to assess the potential for collateral damage touninvolved civilians and civilian objects.238

As a result, force under international humanitarian law presents a significantly differentlegal and moral challenge. Every human life remains precious, but assessing when the takingof life may be justified is rarely undertaken on a scale of one or two victims. This assessmentmust often be carried out by weighing the relative importance of protecting or destroyingobjects or achieving political objectives.

The significance of this challenge emerges when an attempt is made to establish criteria forinstituting a supervisory framework on the use of force in armed conflict. The human rightsapproach 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 oraccount for all armaments that are expended is clearly not always practical. What, then, arethe correct criteria? Is an investigation warranted when one, ten, or one hundred civilians arekilled? Since the conduct of hostilities by its very nature often involves the wide-scale applica-tion of lethal force, not every death can or should be subject to the exhaustive review pro-cess normally associated with the application of peacetime human rights norms.

These obstacles, however, do not mean that criteria cannot be established.239 Thus, thoseanalyzing whether a killing is extralegal should first acknowledge what body of law the stateor group using force is applying to the situation. Second, mistakes in targeting and the failureof 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 explainthe 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 tar-geting of unprivileged belligerents or others who, on the basis of publicly available informa-tion, do not appear to be directly participating in hostilities. For example, asking authoritiesto establish how a leader is linked to the operations of a nonstate actor could contribute effec-tively to the accountability process. Finally, inquiries might be made when the state has useddeadly force in a situation where it exercised sufficient control that detention and arrest ofterrorists appeared feasible. This latter step might be especially appropriate in cases of a directinterface between domestic policing functions and an ongoing armed conflict.240

The public nature of the human rights accountability process is an effective tool in helpingto ensure that a state’s use of force is justified. Yet the level of transparency sought in thehuman 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 interna-tional relations, disclosure of the capabilities of weapons systems, and the need to protectintelligence assets, may adversely affect public reporting on the findings of any investigation.


241 This broader sense of responsibility appears unlikely to occur unless there develops a more global sense ofcommunity, such as the “cosmopolitan patriotism” suggested by FALK, supra note 12, at 144–46.

Further, those concerns may also erode the usual level of institutional separation between theauthorities using force and the investigatory bodies. Still, a worthwhile investigation can beconducted and an enhanced level of objectivity injected through the participation of per-sons from outside the chain of command or even the military. The accountability frameworkmust 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? Theirinvolvement in the domestically focused human rights endeavor is undoubtedly rooted inthe political responsibility and accountability of the state to all its citizens. The same sense ofresponsibility or accountability may not extend to foreign victims of the use of force.241 Thesefactors, combined with the potential for any investigation to become politically charged bythe issues that prompted the armed conflict in the first place, may ultimately operate to limitthe involvement of victims in an accountability process. But challenges in establishing thescope and nature of such a process should not prevent the making of attempts to do so or toenhance the existing process.

IX. CONCLUSION

The intentional taking of human life is and should be an emotional issue, as humanitymaintains 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 thenorms of either international human rights or humanitarian law. The maintenance of socialorder both internationally and domestically inevitably leads to conflict and, periodically, thenecessity 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 frame-works governing the use of lethal force. Since its inception, the state has held the primaryresponsibility of controlling violence within its borders. The degree of control that a state exer-cises internally because of its monopolization of violence has also allowed for a much moreinvasive process to regulate the use of force domestically than that available to regulate inter-state armed conflict. Nowadays, however, nonstate actors have enhanced ability to engage inconflict on an international level. This reintroduction of a form of private war challenges thestate-based international regime for the maintenance of order in new and significant ways.

To enable international humanitarian law to regulate contemporary armed conflict effec-tively, it must set forth realistic rules governing the use of deadly force that reflect the levelsof violence and the nature of the threat posed to society. At the same time, armed conflictdoes not occur in isolation. Society will still have to be governed according to human rightsnorms. The resulting interface between the two normative structures is most graphically repre-sented in noninternational armed conflict, situations of occupation, and the contemporarywar on terrorism. Both areas of law have important and constructive contributions to makeso as to establish a secure environment for the enjoyment of fundamental rights.

In particular, incorporation of human rights principles of accountability can have a positiveimpact on the regulation of the use of force during armed conflict. Given the close interfacebetween these two normative frameworks in some types of armed conflict, their mechanismsof accountability will inevitably need to be reconciled; but systems of accountability developedto regulate the use of force domestically cannot simply be transferred to the internationalhumanitarian law context. Consequently, both states and human rights supervisory bodies mayhave to readjust their understanding of the role human rights law can play in enhancing theaccountability framework regarding the use of deadly force in armed conflict. No gaps in theeffort to apply appropriate norms of humanity can be allowed.

controlling the use of force - a role for human rights

Documents