International law and terrorism: some "Qs and As" for operators - Notes from the Field

Charles J. Dunlap, Jr.

The events of 11 September 2001 present military lawyers--like the rest of the U.S. armed forces--with a variety of new challenges. The war on terrorism raises complex legal issues, not the least of which is whether it is a "war" at all. As difficult as it may be to determine what law applies to a particular question, it may be even more challenging to translate one's legal analysis into something that commanders and their troops can understand.

This note presents a series of common questions raised by recent events and a suggested answer for each question. These answers are not intended to be comprehensive dissertations on every aspect of each question; they are designed to guide practitioners through the key points of law and help them give clear, understandable responses to non-lawyers. For questions that require further research, this note's format and citations are intended to provide the reader with a useful starting point. It is important to remember, however, that the international and domestic laws that apply to terrorism are changing rapidly. Practitioners, therefore, must stay current with these laws to ensure that their answers follow the most recent authorities and national policy. (1)

1. What Is Terrorism?

The United States Code defines terrorism as "premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents." (2) The Department of Defense (DOD) defines terrorism more broadly, calling it "the calculated use of unlawful violence or the threat of unlawful violence to inculcate fear; intended to coerce or intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological." (3)

2. Does the United States Consider Terrorism a Crime or An "Act of War"?

Historically, the United States has treated terrorist acts committed by non-state actors--persons not acting for a nation-state--as crimes to be addressed by domestic law enforcement authorities. (4) The United States is a party to several international treaties that apply to particular forms of terrorism; most of these conventions require the parties to establish criminal jurisdiction over offenders. (5) State-sponsored terrorism is ordinarily considered to be a national security issue to be addressed by the armed forces. (6)

3. In Terms of International Law, What Does "Act of War" Really Mean?

In the modern era, the phrase "act of war" is more a political term than a legal one. (7) Article 2 of the U.N. Charter has since supplanted the concept of "act of war" by requiring members to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." (8)

4. Does the U.N. Charter Outlaw All Uses of Force?

No. The U.N. Charter provides two principal exceptions to its prohibition against the use of force: (1) The U.N. Security Council can authorize member nations to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security"; (9) and (2) member states may use force in self-defense under Article 51 of the U.N. Charter. Specifically, Article 51 states, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security...." (10)

5. The Security Council Passed a Resolution Condemning the 11 September 2001 Attacks; Does This Resolution Provide Legal Authority to Use Force?

On 12 September 2001, the Security Council adopted a resolution that condemned the attacks, expressed its determination to combat terrorist acts by "all means," (11) reaffirmed member states' inherent rights of individual and collective self-defense, and expressed its readiness "to take all necessary steps" to respond to the terrorist attacks. It does not, however, explicitly authorize the use of force except in self-defense. (12)

6. On What Legal Theory Is the United States Relying to Justify the Use of Force Against Terrorists?

The United States is relying on its inherent right of self-defense. In its joint resolution authorizing the use of force, Congress noted that the attacks of 11 September 2001 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens, both at home and abroad, ... to deter and prevent acts of international terrorism against the United States." (13)

7. Does the Law of Armed Conflict (LOAC) Apply to Counter-Terrorism Operations?

Generally, the LOAC only applies to international armed conflicts between nation-states, and under certain circumstances, organized resistance movements. (14) The LOAC usually does not govern the conduct of military or police personnel in law enforcement operations against non-state actors. If a state sponsors the terrorist group, the LOAC may govern counter-terrorism operations. (15) As a matter of U.S. government policy, however, the U.S. armed forces must "comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations." (16)

8. You Said LOAC Only Applies to International Armed Conflicts Between States. Will Our Response Be Considered Part of an "International Armed Conflict"?

It depends. By definition, the Geneva Conventions apply in cases of "armed conflict which may arise between two or more of the High Contracting Parties." (17) This means that the Conventions, which form a large part of the LOAC, apply mainly when nations fight. Whether a specific response to a specific terrorist attack rises to the level of nations fighting depends on the factual circumstances surrounding the attackers, the attack, and the response. It may also depend upon the level of involvement of any harboring or protecting state. (18) If the conflict does not rise to the level of an "international armed conflict," then only a small portion of the Geneva Conventions would legally apply. (19) In such a case, the United States could not, for example, legally demand that any of its soldiers captured during counter-terrorist operations have prisoner of war (POW) status. (20)

9. Is It Legal for the United States to Use Military Force Against Non-State Terrorists in Another State in Self-Defense?

Yes. As a general rule, states should only employ military force as a last resort, when law enforcement efforts are ineffective. (21) Ordinarily, U.S. law enforcement and judicial authorities will respond to terrorist acts in the United States first. (22) Most experts agree, however, that all states "must be able to exercise their inherent rights to defend themselves against all actors--non-state and state alike." (23)

10. Is It Legal to Use Military Force Against a State That Harbors Non-State Terrorists?

Yes, under certain circumstances. When non-state actor terrorists merely use a state's territory as a "safe haven," and the host state is unable to prevent the terrorists from operating there, a victim state is entitled to use force against the non-state actors in self-defense, although this will violate the sovereignty of the host nation. (24) When the host nation does more than merely acquiesce to the terrorists' presence and conspires with them, or aids or abets them, the actions of the terrorists become imputed to the state itself. (25) In such "state sponsorship" situations, the victim state may use such force as is necessary against the host nation itself to ensure that the host nation no longer presents a threat of continued facilitation or support of terrorist operations. (26)

11. Is It Legal to Use Force Against Countries That Help, But Do Not Harbor, Terrorists?

Possibly. A state's right to act in anticipatory self-defense may warrant the use of force when necessary to stop future attacks. (27) The lawfulness of the state's action depends largely upon the nature and magnitude of the state support given to the terrorists. (28)

12. What Exactly Is Permitted Under the Concept of Self-Defense?

The U.S. military's Standing Rules of Engagement (SROE) (29) say that the use of force in self-defense "must be reasonable in intensity, duration, and magnitude to the perceived or demonstrated threat based on all the facts known to the commander at the time." (30) Self-defense also includes the "authority to pursue and engage hostile forces that continue to commit hostile acts or exhibit hostile intent." (31) International law does not limit actions in self-defense to only those necessary to counter immediate, tactical dangers; rather, it is permissible to continue the use of force on a wider basis until the aggressor no longer constitutes a threat. (32)

13. Do We Have to Wait Until We Are Under Attack Again Before We Act in Self-Defense?

No. The United States and other (but not all) countries believe that anticipatory self-defense is inherent in the basic right of self-defense. (33) When a potential adversary exhibits hostile intent, the SROE permits U.S. forces to act in anticipatory self-defense. (34) The White House has made it clear that anticipatory self-defense is part of the U.S. national security strategy:

   We must be prepared to stop rogue states and
   their terrorist clients before they are able to
   threaten or use weapons of mass destruction
   against the United States and our allies and
   friends.... It has taken almost a decade for
   us to comprehend the true nature of this new
   threat. Given the goals of rogue states and
   terrorists, the United States can no longer
   solely rely on a reactive posture as we have in
   the past. The inability to deter a potential
   attacker, the immediacy of today's threats,
   and the magnitude of potential harm that
   could be caused by our adversaries' choice of
   weapons, do not permit that option. We cannot
   let our enemies strike first. (35)

14. Is "Retaliation" Considered Self-Defense?

No. Retaliation, as that word is used in the law, is not permitted under international or domestic law. (36) Retaliation is lex taliones, that is, the "infliction upon a wrongdoer of the same injury which he has caused another." (37) An aggrieved state cannot legitimately use force to inflict punishment or retribution for its own sake; force is only lawful to the extent needed to restore peace, and where possible, bring criminals to justice. (38) It is the responsibility of the appropriate courts and tribunals to determine the appropriate punishment for criminals, including war criminals. Military forces may not inflict summary punishment. (39)

The Secretary of Defense recognized the important distinction between retaliation and self-defense in a 13 September 2001 television interview. When asked about the possible use of force to retaliate against terrorists, he corrected the interviewer and stated, "I don't think of it as retaliation. I don't think of it as punishment. I think of it as self-defense." (40) Likewise, in an interview on 20 October 2001, the Chairman of the Joint Chiefs of Staff stated that "[t]he United States isn't into retribution." (41)

15. What Is a "Reprisal"?

In legal terms, a "reprisal" is the legal use of an otherwise unlawful act in response to an illegal act by the enemy. (42) For example, if an enemy uses an illegal weapon, the doctrine of reprisal would permit the use of weapons that would "otherwise be unlawful in order to compel the enemy to cease its prior violation." (43) Nations may only carry out reprisals during international armed conflicts; there is no such thing as a legitimate reprisal against a non-state actor criminal. (44) Protocol I to the Geneva Conventions forbids reprisals against civilians and civilian property. (45)

The United States is not a party to Protocol I and does not consider its proscriptions against reprisals directed at civilians to be part of customary international law. The United States is a party to the Geneva Convention on Civilians, (46) and follows its provisions prohibiting reprisals against protected persons and their property. (47) In general, "protected persons" are those "in the hands" of the opposing nation's forces. (48) According to this view, if a nation attacks civilian targets in another nation while acting according to the law of reprisals, the reprisal would be lawful; it would violate Protocol I (which the United States does not recognize) but not the Geneva Convention itself. Civilians in the targeted areas would not be considered "protection persons" because they are not "in the hands" of the nation carrying out the reprisal.

16. May a State Use a Disproportionate Response in a Counter-Terrorism Operation?

No. To understand the legality of a disproportionate response, one must first define the precise context in which this term is used. There is no prohibition against the use of overwhelming force to achieve a legitimate military objective or a bona fide law enforcement purpose. The concept of proportionality, however, which is part of the LOAC, prohibits attacks where the incidental loss of civilian life or property "would be excessive in relation to the concrete and direct military advantage anticipated." (49) The concept of proportionality is applied differently in cases of self-defense. (50) The responding government's forces must carry out their attacks in a manner that discriminates between legitimate targets and civilians or protected property. (51)

17. Can a Government Assassinate Terrorists As Part of a Military Operation?

No, but not every killing of an individual is an "assassination" under international or domestic law. Under Executive Order 12,333, no U.S. government employee or service member may "engage in, or conspire to engage in, assassination." (52) "Assassination," however, ordinarily contemplates some measure of treachery or perfidy. For example, killing someone protected by a flag of truce is unlawful assassination. Absent treachery or perfidy, the prohibition against assassination does not prohibit the killing of individuals when necessary in self-defense; it also permits the killing of individual leaders who are directing or controlling armed forces in armed combat. (53)

18. If U.S. Military Forces Capture a Terrorist, Is He a POW?

Probably not. The Geneva Convention protections for prisoners of war only apply to "armed conflict which may arise between two or more of the High Contracting Parties." (54) Even if one assumes that such circumstances exist, the captive must usually be a member of the armed forces of a party to the Convention. (55) Even a member of the armed forces of a party to the Convention--who is entitled to POW status if captured--may be tried for crimes, including war crimes, if he commits an unlawful act. (56) A non-state actor will almost never qualify for POW status, however, except in very rare circumstances. A member of an "organized resistance movement," for example, may be entitled to POW status if the resistance movement's members: (1) are commanded by a person responsible for his subordinates; (2) wear a fixed distinctive sign recognizable at a distance; (3) carry arms openly; and (4) conduct their operations in accordance with the laws and customs of war. (57) In an international armed conflict, persons whose status is unknown are entitled to be treated as POWs until the question of their status is resolved. (58)

19. If a Terrorist Captures a U.S. Military Member, Is He a POW?

It depends. If captured by a state actor--such as a member of the armed forces of a hostile country--during an international armed conflict, the military member is entitled to POW status. (59) There are exceptions to this rule; for example, if the individual was acting as a spy or a saboteur in hostile territory, he could not claim POW status. (60) If a U.S. service member is captured by a non-state actor, such as a terrorist or other criminal, the U.S. military member is technically not a POW but simply a crime victim--a hostage. (61) International law permits an enemy power to hold POWs until the end of hostilities, but the criminal captors of a U.S. soldier are required to immediately release him. (62)

20. Does the Code of Conduct Apply in Situations Involving Terrorist Captors?

Yes, but special considerations apply. Department of Defense Directive 1300.7, Training and Education Measures Necessary to Support the Code of Conduct, contains explicit guidance on how the Code of Conduct applies during captivity by terrorists. (63)

21. What Is the Scope of the President's Authority to Counter Terrorism?

As Commander-in-Chief, the President has extensive power to act in the interest of national defense in emergency situations. (64) This power is not unlimited, however. For example, during the Korean War, President Truman ordered the government to take control of the steel industry in anticipation of a strike that he feared would impede national security. The Supreme Court set aside the order, holding that the President's emergency powers are limited to those set forth in the Constitution or provided by statute. (65) After the terrorist attacks of 11 September 2001, Congress granted the President broad war powers to act against terrorists, stating

   [t]hat the President is authorized to use all
   necessary and appropriate force against those
   nations, organizations, or persons he determines
   planned, authorized, committed, or
   aided the terrorist attacks that occurred on
   September 11, 2001, or harbored such organizations
   or persons, in order to prevent any
   future acts of international terrorism against
   the United States by such nations, organizations
   or persons. (66)

22. Must Congress Declare War Before the United States May Take Action Against Terrorists?

No. The President, as Commander-in-Chief, has the constitutional authority (67) and specific congressional authorization to act in the nation's defense, (68) even without a formal declaration of war. In 1973, Congress passed the War Powers Resolution, (69) which requires the President to report to Congress immediately when U.S. forces become involved in hostilities or are deployed overseas equipped for combat. Within sixty days of reporting to Congress, the President must either (1) remove the forces; (2) extend the deadline by a single period of thirty days; or (3) obtain congressional approval for continuing the operation, such as through a declaration of war or congressional resolution. (70) Although presidents have generally complied with the War Powers Resolution, some academics question its constitutionality. (71)

23. What Are a Commander's Obligations Under the LOAC?

Commanders must know the LOAC, ensure that their forces are properly trained in it, observe it in practice, and promptly report LOAC violations. Commanders who order war crimes, or who fail to prevent war crimes they know or should have known would occur, may be criminally liable for them. (72)

The case of General Tomoyuki Yamashita illustrates the responsibilities of commanders for the actions of their subordinates. Yamashita commanded Japanese forces in the Philippines during the Second World War. Shortly before the end of the war, soldiers and sailors under his command killed thousands of Filipino civilians. Despite the absence of any evidence that General Yamashita had ordered or committed any atrocities, a military tribunal tried and convicted him for these killings after the war. (73) The Supreme Court affirmed the findings and death sentence, concluding that

   [t]he law of war imposes on any ... commander
   a duty to take such appropriate measures
   as are within his power to control the
   troops under his command for the prevention
   of acts which are violations of the law of war....
   [H]e may be charged with personal
   responsibility for his failure to take such
   measures when violations result. (74)

24. How Can Military Members Be Certain That Their Orders in Counter-Terrorism Operations Are Lawful?

Military members are only obligated to obey lawful orders. Blind obedience of a superior's orders is not a defense. (75) Members of the U.S. armed forces, however, may infer that all orders are lawful, however, unless they are patently illegal. (76) The U.S. military rarely, if ever, executes an operation plan without first obtaining a legal review of that plan by a trained legal advisor. DOD policy requires that "all operation plans ... concept plans, rules of engagement, execute orders, deployment orders, policies, and directives [be] reviewed by the command legal advisor to ensure compliance with domestic and international law." (77) Furthermore, Protocol I of the Geneva Conventions requires legal advisors to be available at all levels of command. (78) Department of Defense policy also incorporates this requirement. (79)

Conclusion

The War on Terrorism is unlike any other war in American history. Terrorists do not wear uniforms, carry weapons openly, fight as organized units, or obey the most fundamental principles of the LOAC. This new war combines the elements of an international armed conflict, a global guerrilla war, and an international criminal investigation. Fortunately, the U.S. government and the international community have created legal frameworks for each of these levels of hostilities. Practitioners who can understand the fundamental principles of the LOAC that apply to a particular conflict--and who can interpret them for commanders--will become vital assets in the War on Terrorism.

(1.) FindLaw maintains a comprehensive listing of U.S. laws related to terrorism. See generally FindLaw, Special Coverage: War on Terrorism, at http://news.findlaw.com/legalnews/us/terrorism/laws.html (last visited Nov. 13, 2001).

(2.) 22 U.S.C. [section] 2656(d)(1) (2000).

(3.) JOINT CHIEFS OF STAFF, JOINT PUS. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 443 (12 Aug. 2002), available at http:// www.dtic.mil/doctrine/jel/new_pubs/jpl_02.pdf.

(4.) INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, JA 422, OPERATIONAL LAW HANDBOOK 315 (2003) [hereinafter OPERATIONAL LAW HANDBOOK].

(5.) See, e.g., Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219; Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570; Convention of the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167. The United States has enacted criminal statutes prohibiting specific terrorist acts as required by the respective treaties. See, e.g., 18 U.S.C. [section] 1203 (2000) (prohibiting the taking of hostages); 49 U.S.C. [section] 46502 (2000) (prohibiting air piracy).

(6.) THE WHITE HOUSE, NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 10-12 (2002) [hereinafter NATIONAL SECURITY STRATEGY], available at http:// www.whitehouse.gov/nsc/nssall.html. Neutral nations have an obligation to prevent belligerents from using their territory for warlike purposes. Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, art. 5, 36 Stat. 2310, 2323, 1 Bevans 654, 662. If the "neutral" nation permits belligerents to organize, recruit, or communicate on its territory in violation of these obligations, the aggrieved state has a right to defend itself. U.N. CHARTER art. 51; see also OPERATIONAL LAW HANDBOOK, supra note 4, at 4-5.

(7.) The phrase "act of war" appears in the U.S. Code, but not in the context of a rationale to engage in armed conflict. Specifically, Title 18 defines "act of war" as:

   [A]ny act occurring in the course of--

   (a) declared war;

   (b) armed conflict, whether or not war has been declared, between
   two or more nations; or

   (c) armed conflict between military forces of any origin.

18 U.S.C. [section] 2231.

(8.) U.N. CHARTER art. 2, para. 4.

(9.) Id. art. 42.

(10.) Id. art. 51.

(11.) S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001), available at http://daccess-ods.un.org/doc/undoc/gen/n01/533/82/pdf/ n0153382.pdf.

(12.) Id.

(13.) Pub. L. No. 107-40, 115 Stat. 224 (2001). See also U.N. CHARTER art. 51; NATIONAL SECURITY STRATEGY, supra note 6, at 10-12.

(14.) See Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 3118, 75 U.N.T.S. 31,33; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 3220, 75 U.N.T.S. 85, 88; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 137 [hereinafter Geneva Convention III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 3518, 75 U.N.T.S. 287,289 [hereinafter Geneva Convention IV].

(15.) Although the U.S. military position is to apply the principles of the law of war in international armed conflicts and military operations other than war, CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR. 5810.01, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM para. 4(a) (12 Aug. 1996) [hereinafter CJCSI 5810.01], the United States objects to certain provisions of the 1977 Geneva Protocols that appear to give additional protections to non-state actors who do not carry arms openly or wear a fixed and distinctive insignia. OPERATIONAL LAW HANDBOOK, supra note 4, at 11; see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, arts. 43, 44, 16 I.L.M. 1391, 1413, 1125 U.N.T.S. 3, 23 [hereinafter Protocol I].

(16.) U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM para. 5.3.1. (9 Dec. 1998).

(17.) See Geneva Convention III, supra note 14, art. 2.

(18.) See id.; OPERATIONAL LAW HANDBOOK, supra note 4, at 315.

(19.) See Geneva Convention III, supra note 14, art. 3.

(20.) In such an event, the U.S. government would likely call for the immediate repatriation of the service members and demand that their captors afford them all of the protections to which lawful combatants are entitled. E-mail from Colonel Thomas Tudor, Chief, International and Operations Law Division, U.S. Air Force, to Colonel Charles J. Dunlap, Jr., Staff Judge Advocate, Air Education and Training Command (Oct. 9, 2001) (on file with author).

(21.)See RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST STATE-SPONSORED TERRORISM 212 (1989).

(22.) OPERATIONAL LAW HANDBOOK, supra note 4, at 315, 317-18.

(23.) Walter Gary Sharp, Sr., The Use of Armed Force Against Terrorism: American Hegemony or Impotence?, 1 CHI. J. INT'L L. 37, 39 (2000).

(24.) See generally U.N. CHARTER art. 51. One expert concludes that "[m]erely providing safe haven for international terrorists after they have committed their acts" is not an "armed attack" as that term is used in the U.N. Charter. John F. Murphy, The Control of International Terrorism, in NATIONAL SECURITY LAW 465 (John Norton Moore, Fredrick S. Tipton, & Robert F. Turner, eds., 1990).

(25.) Richard J. Erickson explained the limits of a state's imputed responsibility when he wrote:

   As an abstract entity, the state becomes liable under international
   law through the acts or omissions of its officials and agents.
   These acts or omissions are imputed to the state. The acts of the
   head of government are always imputable to the state, as are the
   acts of ministers within the scope of their ministries. The same is
   true of all other officials and agents, irrespective of governmental
   level. This includes military and police authorities. Additionally,
   acts or omissions are imputed to the state even if beyond the scope
   of the legal power of the official and even if opposite to that
   directed so long as they are not repudiated by governmental
   authority and the wrongdoer is not appropriately disciplined or
   punished.

ERICKSON, supra note 21, at 99. There is precedent in international law--for example, the Nuremberg trials--for applying the criminal law concepts of principals and conspiracy to war crimes. The Charter of the International Military Tribunal provided that:

   Leaders, organizers, instigators, and accomplices participating in
   the formulation or execution of a common plan or conspiracy to
   commit any of the foregoing crimes are responsible for all acts
   performed by any persons in execution of such plan.

Charter of the International Military Tribunal, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, art. 6, 59 Stat. 1544, 1547, 82 U.N.T.S. 280, 286-88 [hereinafter Charter of the International Tribunal].

(26.) See U.N. CHARTER art. 51; L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 9 (Manchester Univ. Press 1993).

(27.) OPERATIONAL LAW HANDBOOK, supra note 4, at 4-5; NATIONAL SECURITY STRATEGY, supra note 6, at 10-12.

(28.) See Michael J. Glennon, Military Action Against Terrorists Under International Law: The Fog Of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 HARV. J.L. & PUB. POL'Y 539, 541-49 (2002) (arguing that the term "armed attack," as used in Article 51, should include the provision of arms, supplies, or safe haven to terrorists).

(29.) CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR. 3121.01A, STANDING RULES OF ENGAGEMENT FOR U.S. FORCES (15 Jan. 2000) [hereinafter CJCSI 3121.01A].

(30.) Id. para. 5f.

(31.) Id. para. 8b.

(32.) GREEN, supra note 26, at 9. As the author explained:

   While the charter restricts the right to resort to measures of a
   warlike character to those required by self-defense, its provisions
   only relate to the jus ad bellum. Once a conflict has begun, the
   limitations of Article 51 become irrelevant. This means there is no
   obligation upon a party resorting to war in self-defense to limit
   his activities to those essential to his self-defense. Thus, if an
   aggressor has invaded his territory and been expelled, it does not
   mean that the victim of the aggression has to cease his operations
   once his own territory has been liberated. He may
   continue to take advantage of the jus in bello, including the
   principle of proportionality, until he is satisfied that the
   aggressor is defeated and no longer constitutes a threat.

Id.

(33.) OPERATIONAL LAW HANDBOOK, supra note 4, at 4-5. The accepted customary law rule of anticipatory self-defense has its origin in an 1842 incident in which the British Navy caught the American steamship The Caroline ferrying rebel forces and supplies into Canada. The British Navy attacked the ship, burned it, and sent it over Niagara Falls. After the indicent, Secretary of State Daniel Webster exchanged notes with the British diplomat Lord Ashburton. They ultimately agreed that customary international law allows for the use of force against an imminent threat if such use constitutes "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." This restrictive definition of anticipatory self-defense is still widely accepted as customary international law, despite its obvious limitations in a modern era of intercontinental missiles, long-range supersonic aircraft, nuclear submarines, cruise missiles, and biological weapons. TIMOTHY L.H. MCCORMACK, SELF-DEFENSE IN INTERNATIONAL LAW 139-44 (1996).

(34.) CJCSI 3121.01A, supra note 29, para. 5(h). The SROE defines "hostile intent" as follows:

   The threat of imminent use of force against the United States, U.S.
   forces, and in certain circumstances, U.S. nationals, their
   property, U.S. commercial assets, and/or other designated non-U.S.
   forces, foreign nationals and their property. Also, the threat of
   force to preclude or impede the mission and/or duties of U.S.
   forces, including the recovery of U.S. personnel or vital [U.S.
   government] property.

Id.

(35.) NATIONAL SECURITY STRATEGY, supra note 6, at 12.

(36.) See U.N. CHARTER arts. 2, 51. See generally CJCSI 3121.01A, supra note 29; Andrew D. Mitchell, Does One Illegality Merit Another? The Law of Belligerent Reprisals in International Law, 170 MIL. L. REV. 155 (2001).

(37.) BLACK'S LAW DICTIONARY 1058 (4th ed. 1968).

(38.) See OPERATIONAL LAW HANDBOOK, supra note 4, at 8-10; ERICKSON, supra note 21, at 211 ("If [force is used] in self-defense, then the action must be protective, not punitive.").

(39.) Protocol I, supra note 15, art. 85.4(e). The United States is not a party to Protocol I; however, it considers this rule to be a binding part of customary international law. OPERATIONAL LAW HANDBOOK, supra note 4, at 11.

(40.) Larry King Live (CNN television broadcast, Sept. 13, 2001). The full transcript of that portion of the interview is as follows:

   KING: And how--just a couple more moments--how do we define
   retaliation? Do we retaliate through legal means? Do we
   retaliate through an armed force? What is the definition in
   your head of retaliation?

   RUMSFELD: Larry, I don't think of it as retaliation. I don't think
   of it as punishment. I think of it as self-defense. The United
   States of America has every right to defend itself, and that is what
   it is about. It is consciously saying that countries and entities
   and people who actively oppose the United States and damage our
   interests by acts of violence, acts of war, are our enemies, and
   they are people and organizations and entities and states that we
   have every right to defend ourselves against.

Id.

(41.) General Richard B. Meyers, Pentagon Briefing on the Use of U.S. Army Special Forces in Afghanistan (Oct. 20, 2001), at http://www. washingtonpost.com/wpsrv/nation/specials/attacked/ transcripts/myers_102001.html.

(42.) U.S. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF ARMED CONFLICT para. 497 (18 July 1956).

(43.) U.S. DEP'T OF AIR FORCE, PAM. 110-31, INTERNATIONAL LAW--THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS para. 10-7 (19 Nov. 1976).

(44.) See generally GEOFFREY BEST, WAR AND LAW SINCE 1945, at 311-18 (1994).

(45.) Protocol I, supra note 15, arts. 51.1 - 52.1.

(46.) Geneva Convention IV, supra note 14.

(47.) Id. art. 33.

(48.) Id. art. 4.

(49.) Protocol I, supra note 15, art. 51.5(b).

(50.) During an armed conflict, the rule of proportionality only applies in the context of collateral damage analysis, the balancing of an attack's expected military advantage against the foreseeable non-combatant injury or death it could cause. Protocol I, supra note 15, art. 51(5)(b). When a nation acts strictly in self-defense, however, outside of any ongoing conflict, proportionality restricts the use of force to the amount, type, and duration "necessary to decisively counter a hostile act or demonstrated hostile intent and ensure the continued safety of US forces." CJCS13121.01A, supra note 29, enclosure A, para. 7(c). In the War on Terror, therefore, the proportionality of a particular strike may depend on whether U.S. forces take the action in self-defense, or as part of the ongoing campaign against al Qaeda.

(51.) Protocol I, supra note 15, art. 51.5(b).

(52.) Exec. Order No. 12,333, 3 C.F.R. 200, 213 (1982), reprinted in 50 U.S.C. [section] 401 (2000).

(53.) Id.; see generally Hon. Caspar W. Weinberger, When Can We Target the Leaders?, 29 STRATEGY REV. 21 (2001).

(54.) Geneva Convention III, supra note 14, art 2.

(55.) Id. art. 4(A)(1).

(56.) Id. art. 82.

(57.) Id. art. 4(A)(2).

(58.) Id. art. 5.

(59.) Id. arts. 2, 4.

(60.) Protocol I, supra note 15, art. 46.

(61.) See H. Wayne Elliott, Hostages or Prisoners of War: War Crimes at Dinner, 149 MIL. L. REV. 241 (1995).

(62.) Geneva Convention III, supra note 14, art. 4.

(63.) U.S. DEP'T OF DEFENSE, DIR. 1300.7, TRAINING AND EDUCATION MEASURES NECESSARY TO SUPPORT THE CODE OF CONDUCT encl. 3, para. K (23 Dec. 1988).

(64.) See Donald L. Robinson, Presidential Emergency Powers, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 665 (Kermit L. Hall ed., 1992).

(65.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

(66.) Pub. L. No. 107-40, 115 Stat. 224 (2001).

(67.) U.S. CONST. art. II, [section] 2, cl. 1.

(68.) 115 Stat. at 224.

(69.) War Powers Resolution of 1973, Pub. L. No. 93-148, 87 Stat. 555.

(70.) Id. at 555.

(71.) See, e.g., Charles Tiefer, War Decisions in the Late 1990s by Partial Congressional Declaration, 36 SAN DIEGO L. REV. 1 (1999).

(72.) CJCSI 5810.01, supra note 15, para. 5(c).

(73.) In re Yamashita, 327 U.S. 1 (1946).

(74.) Id. at 14. See also W. Hays Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1 (1973).

(75.) "The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determine that justice so requires." Charter of the International Tribunal, supra note 25, art. 8; see also OPERATIONAL LAW HANDBOOK, supra note 4, at 30.

(76.) MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV, [paragraph] 14c(2)(a)(i) (2002). But see MARK J. OBEYING ORDERS (1999) (arguing for a new norm that would require deliberative judgment in lieu of a presumption of lawfulness).

(77.) CJCSI 5810.01, supra note 15, para. 6(c)(5).

(78.) Protocol I, supra note 15, art. 82.

(79.) CJCSI 5810.01, supra note 15, para. 5(b).

Brigadier General Charles J. Dunlap, Jr., USAF
Staff Judge Advocate
Air Combat Command
Langley Air Force Base, Virginia

COPYRIGHT 2002 Judge Advocate General's School
COPYRIGHT 2004 Gale Group