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The conduct of hostilities during Operation Iraqi Freedom: an international humanitarian law assessment1

Published online by Cambridge University Press:  17 February 2009

Michael N. Schmitt
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The war in Iraq thrust international law into the global spotlight as has no conflict since Vietnam. Jus ad bellum debates grew increasingly heated as the launch of hostilities in March 2003 approached. Did Security Council resolution 1441 authorise Operation Iraqi Freedom (hereafter, OIF)? Perhaps the attack was an exercise of self-defence against state-support to terrorism. Did the purported doctrine of ‘preemptive self-defence’, enunciated in the 2002 US National Security Strategy, offer a legal justification? What of humanitarian intervention, democratisation or regime change? Or was the sole normative basis the one formally asserted by the United States and United Kingdom — breach of a ceasefire set forth in a Security Council resolution adopted a dozen years earlier? The jus ad bellum brouhaha resurfaced in April 2005 with the revelation that British Attorney General Lord Goldsmith had issued a classified memorandum on the legality of hostilities that differed from the public justification he proffered, with OIF days away, just over a week later.

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Yearbook of International Humanitarian Law , Volume 6 , December 2003 , pp. 73 - 109
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Copyright © T.M.C. Asser Instituut and the Authors 2003

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References

3. The jus ad bellum is that component of international law that governs when a state may resort to the use of force. By contrast, the jus in bello addresses how force may be applied in armed conflict, irrespective of the legality of the initial resort to force. On jus ad bellum aspects of the conflict, see Schmitt, M. N., ‘The legality of Operation Iraqi Freedom under international law’, 3 Journal of Military Ethics (2004) p. 82CrossRefGoogle Scholar; Future implications of the Iraq conflict (Washington, DC, American Society of International Law 2004)Google Scholar.

4. SC Res. 1441, 8 November 2002.

5. The National Security Strategy of the United States of America (Washington, DC, The White House 2002)Google Scholar. For a discussion of the legal aspects of the strategy, see Schmitt, M.N., ‘Preemptive strategies and international law’, 24 Michigan JIL (2003) p. 513Google Scholar.

6. See Turner, R.F., ‘Was Operation Iraqi Freedom legal?’, in Mylroie, L., ed., Bush vs. the Beltway (New York, Regan Books 2003) p. 164Google Scholar.

7. Letter dated 20 March 2003 from the Permanent Representative of the US to the UN addressed to the President of the Security Council, UN Doc. S/2003/351, 21 March 2003 <http://www.newsmax.com/archives/articles/2003/3/22/195522.shtml> Letter dated 20 March 2003 from the Permanent Representative of the UK to the UN addressed to the President of the Security Council, UN Doc. S/2003/350, 21 March 2003 <http://www.newsmax.com/archives/articles/2003/3/22/195522.shtml>.

8. UK Attorney General Letter, ‘Iraq: Resolution 1441’, 7 March 2003 <http://www.number-10.gov.uk/files/pdf/Iraq%20Resolution%201441.pd>; UK Attorney General Letter, ‘Written Answer on Iraq Advice’, 17 March 2003 <http://news.bbc.co.uk/l/hi/uk_politics/vote_2005/frontpage/4492195.stm>.

9. On the occupation, including the effect of UN law on the law of belligerent occupation, see Schmitt, M.N. and Garraway, C.H.B., ‘Occupation policy in Iraq and international law’, 9 International Peacekeeping: The Yearbook of International Peace Operations (2004) p. 27Google Scholar.

10. For instance, at a recent Chatham House conference, the matter became contentious when a member of the audience questioned the basis on which the United States continued to hold detainees in Iraq. The response rather unsatisfactorily noted that the US position on whether the conflict had ended was unclear. Despite the participation of numerous senior US and UK goverment attorneys at the conference, no clear or consistent position on the matter was discernable. The Law of Armed Conflict: Problems and Prospects (transcripts and summaries of presentations and discussions), Conference 18–19 April 2005, pp. 45–46 <http://www.riia.org/pdf/research/il/ILParmedconflict.pdf>.

11. Bush, G.W., ‘Remarks from the USS Abraham Lincoln’, 1 05 2003Google Scholar <http://www.whitehouse.gov/news/releases/2003/05/iraq/2003501-15.html>. For an earlier treatment of the subject, see Dinstein, Y., ‘Jus in bello issues arising in the hostilities in Iraq in 2003’, 34 Israel YB HR (2004) p. 1Google Scholar.

12. The article does not address US actions pursuant to their occupation duties following, for instance, the fall of Baghdad on 9 April or that of Kirkuk on 11 April.

13. Human Rights Watch Report, ‘Off target: the conduct of the war and civilian casualties in Iraq’ (2003) <http://www.hrw.org/reports/2003/usa1203/> (hereafter, Off Target). HRW has developed substantial experience in surveying recent conflicts. See, e.g., ‘Civilian deaths in the NATO air campaign’ (2000) <http://www.hrw.org/reports/2000/nato/index.htm#35;TopOfPag>; ‘Fatally flawed: cluster bombs and their use by the United States in Afghanistan (2002) <http://www.hrw.org/reports/2002/us-afghanistan/index.htm#35;TopOfPage>.

14. Discussions between author and senior officers.

15. ICRC Press Release 03/18, ‘Iraq: ICRC calls for respect for international humanitarian law’, 20 March 2003 <http://ww.icrc.org/Web/Eng/siteeng0.sf/iwpList74/676ABB34762671B2C1256CEF001791D1>.

16. For an excellent summary of the nature and sources of customary international humanitarian law, see Henckaerts, J.-M., ‘Study on customary international humanitarian law: a contribution to the understanding and respect for the rule of law in armed conflict’, 87 IRRC (2005) p. 175CrossRefGoogle Scholar.

17. Additional Protocol I to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 12 December 1977, 1125 UNTS p. 3 (hereafter, PI).

18. Ibid., Art. 96.

19. Art. 2 Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907, 36 Stat. p. 2277, 1 Bevans 631 (hereafter, HIVR). A general participation clause (clausula si omnes) precludes application of the treaty when all belligerents are not party to the treaty. The intent is to avoid the creation of multiple legal regimes in the same conflict.

20. E.g., Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS p. 240 (US/UK not a party, although signatories) (hereafter, HCP); Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 10 December 1976, 31 UST p. 333 (Iraq not a party); Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 19 ILM (1980) p. 1523Google Scholar (Iraq not a party) (hereafter, CCW); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 18 September 1997, 36 ILM (1997) p. 1507 (Iraq and US are not parties)Google Scholar.

21. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, 17 June 1925, 26 UST p. 571 (hereafter, Gas Protocol); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS p. 163.

22. Art. 1(1) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993, 1974 UNTS p. 45.

23. The provision was proposed by Friedrich von Martens, Russian delegate to the Hague Peace Conferences of 1899 and 1907. A Martens clause appears in the preamble of Convention — II) with Respect to the Laws and Customs of War on Land, with annex of Regulations, 29 July 1899, 32 Stat. p. 1803, 1 Bevans p. 247 (hereafter, 1899 HR); HIVR, supra n. 19, preamble; Gas Protocol, supra n. 21, preamble; Art. 63 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS p. 31 (hereafter, GC I); Art. 62 Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea 1949, 75 UNTS p. 85 (hereafter, GC II); Art. 142 Convention Relative to the Treatment of Prisoners of War 1949, 75 UNTS p. 135 (hereafter, GC III); Art. 158 Convention Relative to the Protection of Civilian Persons in Time of War 1949, 75 UNTS p. 287 (hereafter, GC IV); CCW, supra n. 20, para. 5.

24. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Rep. (1996) para. 87 (hereafter, Nuclear Weapons).

25. Art. 38(l)(b) Statute of the International Court of Justice. Customary international law is ‘looked for primarily in the actual practice and opinio juris of States’, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgement, ICJ Rep. (1985) para. 27. See also North Sea Continental Shelf Cases, Judgement, ICJ Rep. (1969) pp. 3 at 44.

26. Nuclear Weapons, ICJ Rep. (1996) para. 78. The former limits not only the direct targeting of civilians, but also employment of weapons incapable of distinguishing them from combatants.

27. Ibid., para. 79.

28. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. (2004) para. 89.

29. In 1945 the Tribunal declared that norms set forth in the Regulations annexed to the Fourth Hague Convention ‘were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war’. Trial of the Major War Criminals before the International Military Tribunal, Vol. 1 (Nuremberg, 1947) p. 254Google Scholar.

30. ‘Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808’ (1993), UN Doc. S/25704, 3 May 1993, para. 34.

31. The Security Council unanimously approved this report in SC Res. 827 (1993).

32. Art. 8(2)(b) Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/ CONF. 183/9 (1998), corrected through 16 January 2002 <http://www.icc-cpi.int/>. Nevertheless, it does aid in the search for customary IHL. On the relationship to customary IHL, see Dinstein, Y., The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, Cambridge University Press 2004) pp. 232–233CrossRefGoogle Scholar; Cassese, A., International Criminal Law (Oxford, Oxford University Press 2003) pp. 59–62Google Scholar; Schabas, W.A., An Introduction to the International Criminal Court, 2nd edn. (Cambridge, Cambridge University Press 2004) pp. 60–64CrossRefGoogle Scholar; Bothe, M., ‘War crimes’, in Cassese, A. et al. , eds., The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford, Oxford University Press 2002) p. 379Google Scholar. Note that while all war crimes must be violations of IHL, not all IHL violations are war crimes.

33. Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law (Cambridge, Cambridge University Press 2005) (hereafter, CIHL)CrossRefGoogle Scholar.

34. For reports on a conference launching the study on CIHL at Chatham House in April 2005 <http://www.riia.org/index.php?id=79>.

35. As this is a legal, not factual, inquiry, for the sake of analysis the article assumes the accuracy of descriptions from reasonably reliable sources, including Off Target, supra n. 13. The question at hand is not ‘did an act happen’, but instead ‘if this happened, was it lawful?’

36. Woodward, B., Plan of Attack (New York, Simon & Shuster 2004) ch. 35Google Scholar.

37. On TST, see US Joint Forces Command, Commander's Handbook for Joint Time-Sensitive Targeting, 22 March 2002 <http://www.jwf.jte.osd.mil/pdf/tsthndbk.pdf>.

38. In lieu of classic attrition strategies. In attrition warfare, an enemy force is progressively worn down until it can no longer mount opposition effectively. By contrast, effects-based operations seek to generate defined effects upon an opponent. For instance, it is unnecessary to destroy an enemy formation that can be rendered combat ineffective through disruption of command and control. See Joint Chiefs of Staff, ‘Joint doctrine for targeting’, Joint Publication 3–60, 17 01 2002, p. 1–4Google Scholar; Deptula, D.A., Effects-Based Operations: Change in the Nature of War (Arlington, VA, Aerospace Education Foundation 2001)Google Scholar <http://www.aef.org/pub/psbook.pdf>.

39. The effects sought are ‘cascading’ in nature. On the various types of effects sought in EBO operations, see Joint Publication 3–60, supra n. 38, p. 1–6.

40. Warden, J.A., ‘The enemy as a system’, 40 Airpower Journal (1995)Google Scholar. For a commentary on Warden's theory, see Mets, D.R., The Air Campaign: John Warden and the Classical Airpower Theorists (Maxwell AFB, Al, Air University Press 1998)CrossRefGoogle Scholar.

41. van Voorst, B., ‘Ready, aim, fired’, in Time Magazine, 1 10 1990, p. 55Google Scholar. The ‘High Command’ case of 1948 was based in part on Hitler's order to kill Soviet Commissars (political officials). The judgement labeled the order ‘notorious’ and the case yielded multiple convictions. US v. Von Leeb et al. (High Command case), 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1950) p. 1Google Scholar. Also recall the controversy surrounding Operation Phoenix, the CIA's program to neutralise the Vietcong civilian infrastructure (resulting in nearly 20,000 deaths). S. Ratner, Bob Kerry Case (2001) <http://www.crimesofwar.org/expert/ratner.html>.

42. Report by Lord Robertson titled ‘Kosovo one year on: achievement and challenge’, 21 March 2000, p. 13 <http://www.nato.int/kosovo/repo2000/index.htm>.

43. Graham, B., ‘Missiles hit state tv, residence of Milosovic’, in The Washington Post, 23 04 1999Google Scholar.

44. Off Target, supra n. 13, p. 40.

45. Assassination was expressly prohibited as early as 1863. Art. 148 of the Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber and promulgated as General Orders No. 100 by President Lincoln, 24 April 1863 (Lieber Code), ICRC treaty database <http://www.icrc.org/ihl>. On assassination in armed conflict, see Schmitt, M.N., ‘State sponsored assassination in international and domestic law’, 17 Yale JIL (1992) p. 609Google Scholar; Parks, W. Hays, ‘Memorandum of law: Executive Order 1233 and assassination’, The Army Lawyer (12 1989) p. 4Google Scholar.

46. HIVR, supra n. 19, Art. 23(b).

47. On the topic generally, see Dinstein, Y., ‘Legitimate military objectives under the current jus in bello’, in Wall, A.E., ed., Legal and Ethical Lessons of NATO's Kosovo Campaign (Newport, RI, United States Naval War College 2002) p. 139Google Scholar; Robertson, H., ‘The principle of military objective in the law of armed conflict’, in Schmitt, M.N., ed., The Law of Military Operations (Newport, RI, United States Naval War College 1998) p. 179Google Scholar.

48. On unlawful combatants, see Dinstein, Y., ‘Unlawful combatancy’, 32 Israel YB HR (2002) p. 47Google Scholar.

49. Violations are grave breaches under Art. 85(3)(a) of Additional Protocol I, and therefore, states party to the Protocol are obligated to search for individuals alleged to have targeted civilians (or ordered them to be targeted) and either try them for the offense or turn them over to another State Party willing to do so.

50. CIHL, supra n. 33, Rules 1 and 6.

51. GC III, supra n. 23, Art. 4A(l)-(2). These provisions exclude the following from civilian status:

‘(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a)that of being commanded by a person responsible for his subordinates;

(b)that of having a fixed distinctive sign recognizable at a distance;

(c)that of carrying arms openly;

(d)that of conducting their operations in accordance with the laws and customs of war.'

Art. 43(1) of Additional Protocol I provides that ‘the armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.’ PI, supra n. 17, Art. 43(1).

52. A levée en masse consists of ‘inhabitants of a non-occupied territory, who on approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units’. GC III, supra n. 23, Art. 4A(6).

53. The exception applies in ‘situations in armed conflict where owing to the nature of hostilities an armed combatant cannot so distinguish himself’. In such cases, he need only distinguish himself during each military engagement and while engaged in ‘a military deployment preceding the launching of an attack’ during such time as he is visible to the adversary.

54. PI, supra n. 17, Art. 43(3).

55. The commentary to Art. 43 of Additional Protocol I makes it clear that only religious and medical personnel enjoy a special status in the armed forces: ‘In fact, in the army there are numerous important categories of soldiers whose foremost or normal task has little to do with firing weapons. These include auxiliary services, administrative services, the military legal service and others. Whether they actually engage in firing weapons is not important. They are entitled to do so, which does not apply to either medical or religious personnel….’ Sandoz, Y. et al. , eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) para. 1677Google Scholar (hereafter, Commentary AP).

56. See Rome Statute, supra n. 32, Art. 27. It specifically makes them subject to prosecution, another indication that humanitarian law carves out no special regime for heads of state. On targeting heads of states, see also Wingfield, T., ‘Taking aim at regime elites: assassination, tyrannicide, and the clancy doctrine’, 22 Maryland JIL & T (1999) p. 287Google Scholar; Turner, R.F., ‘It's not really ‘assassination’: legal and moral implications of intentionally targeting terrorists and aggressor-state regime elites’, 37 University of Richmond Law Review (2003) p. 787Google Scholar; Canestaro, N.A., ‘American law and policy on assassinations of foreign leaders: the practicality of maintaining the status quo’, 26 Boston College Int. & Comp. LR (2003) p. 1Google Scholar; Beres, L.R., ‘Assassinating Saddam Hussein: the view from international law’, 13 Indiana International and Comparative Law Review (2003) p. 847Google Scholar.

57. US Constitution, Art. II, sec. 2, cl. 1. Former Secretary of Defense Casper Weinberger has suggested that a head of state or government who serves as commander of the armed forces is a combatant. As a matter of law, he overreaches. Weinberger, C., ‘When can we target the leaders?’, 29 Strategic Review (2001) pp. 21–24Google Scholar.

58. The Department of Defense, ‘Dictionary of military and associated terms’, Joint Publication 1–02, offers the following definitions for the levels of war:

‘Strategic Level of War: The level of war at which a nation, often as a member of a group of nations, determines, national or multinational (alliance or coalition) security objectives and guidance, and develops and uses national resources to accomplish these objectives. Activities at this level establish national and multinational military objectives; sequence initiatives; define limits and assess risks for the use of military and other instruments of national power; develop global plans or theater war plans to achieve these objectives; and provide military forces and other capabilities in accordance with strategic plans.

Operational Level of War: The level of war at which campaigns and major operations are planned, conducted, and sustained to accomplish strategic objectives within theaters or other operational areas. Activities at this level link tactics and strategy by establishing operational objectives needed to accomplish the strategic objectives, sequencing events to achieve the operational objectives, initiating actions, and applying resources to bring about and sustain these events. These activities imply a broader dimension of time or space than do tactics; they ensure the logistic and administrative support of tactical forces, and provide the means by which tactical successes are exploited to achieve strategic objectives.

Tactical Level of War: The level of war at which battles and engagements are planned and executed to accomplish military objectives assigned to tactical units or task forces. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and to the enemy to achieve combat objectives.’

59. See CIHL, supra n. 33, Rule 6. The CIHL cites this principle as customary.

60. Commentary AP, supra n. 55, para. 1678.

61. Ibid., para. 1942.

62. Henckaerts, supra n. 16, p. 190. The issue is presently the subject of an on-going study by IHL experts co-sponsored by the ICRC and the T.M.C. Asser Institute. Summary reports of the first two meetings (2003 and 2004) <http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/459B0FF70176F4E5C1256DDE00572DAA>.

63. Schmitt, M.N., ‘Humanitarian law and direct participation in hostilities by private contractors or civilian employees’, 5 Chicago Journal of International Law (2005) pp. 511 at 534–535Google Scholar. On the topic, see also Schmitt, M.N., ‘“Direct participation in hostilities” and 21st century armed conflict’, in Fischer, H. et al. , eds., Crisis Management and Humanitarian Protection (Berlin, Berliner Wissenschafts-Verlag 2004) p. 505Google Scholar.

64. The case-by-case approach is adopted in the US Navy (and Marine Corps/Coast Guard) Manual, Commander's Handbook on the Law of Naval Operations, NWP 1–14M, MCWP 5–2.1, COMDTPUB P5800.7 (1995) para. 11.3 (hereafter, WWP 1–14M). The ICTY came to the same conclusion: ‘It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual's circumstances, that person was actively involved in hostilities at the relevant time.’ Prosecutor v. Tadić, Case No. IT-94–1-T, Opinion and Judgement, Trial Chamber, 7 May 1997, para. 616. The issue was crimes against persons taking no direct part in hostilities.

65. Off Target, supra n. 13, pp. 28–35.

66. US CENTCOM News Release No. 03–04–54, ‘Coalition aircraft strike home of “Chemical Ali”’, 5 April 2003. Interestingly, news release of leadership targeting, including this one, carried the caveat ‘Coalition forces only target legitimate military targets’. CENTCOM News Releases are available at <http://www.centcom.mil/CENTCOMNews/release_list.asp>.

67. US CENTCOM News Release No. 03–04–98, ‘Coalition forces continue to target regime’, 10 April 2003.

68. Apparently, HRW did not conclude that all those targeted were lawful or unlawful combatants, but rather felt it had insufficient information to go on record as saying they were not.

69. The report is corroborated by US CENTCOM News Release No. 03–04–81, ‘Bombing in Al Mansour targeted Iraqi leadership’, 8 April 2003.

70. DoD News Transcript, ‘DoD news briefing — ASD PA Clarke and Maj. Gen. McChrystal’, 8 April 2003 <http://www.defenselink.mil/transcripts/2003/tr20030408/0082.html>.

71. This differs from the precautions in attack requirement to exhaust feasible means of verification set forth in PI, supra n. 17, Art. 57(2)(a)(i).

72. Off Target, supra n. 13, p. 26.

73. Commentary AP, supra n. 55, para. 2037.

74. This principle was articulated most notably in the Rendulic case. German General Rendulic was accused of excessive destruction during the German evacuation of Norway. He was acquitted of the charge on the basis of his (mistaken) belief that the Russians were pursuing his forces and that therefore the destruction was necessary to deny them resources. ‘The Hostages case’ (US v. List et al.), 11 Trials of War Criminals (1950) pp. 759 at 1253–1254Google Scholar.

75. See discussion in Cassese, supra n. 32, pp. 251–252.

76. It is essential to distinguish mistakes of fact from the mistakes of law. Confusion as to the applicable law generally does not exclude criminal responsibility (ignorantia legis non excusat). Therefore, misunderstanding the legal standard for direct participation is not a defence.

77. See, e.g., discussion in Groen, M.S., ‘The tactical fusion center: a blueprint for the future of intelligence dissemination within the MAGTF’, 89 Marine Corps Gazette (2005) p. 59Google Scholar; Robinson, L., ‘Tinker, tailor, soldier, spy’, in US News & World Report, 25 04 2005, p. 34Google Scholar.

78. L. LaVella, Operation Enduring Freedom: Time Sensitive Targeting Process Study (Veridan Information Solutions Inc. 2003) (on file with author).

79. CIHL, supra n. 33, Rule 14; See also inclusion by US in NWP 1–14M, supra n. 64, para. 8.1.2.1; Rome Statute, supra n. 32, Art. 8(2)(b)(iv).

80. PI, supra n. 17, Art. 51(4)(b); CIHL, supra n. 33, Rule 71; NWP 1–14M, supra n. 64, para. 9.1.2; Rome Statute, supra n. 32, Art. 8(2)(b)(xx).

81. Off Target, supra n. 13, p. 24.

82. The ICJ has stated that the issue is whether the weapon in question is ‘incapable of distinguishing between civilian and military targets’. Nuclear Weapons, ICJ Rep. (1996) para. 78.

83. An aimpoint is ‘[a] precise point associated with a target and assigned for a specific weapon impact to achieve the intended objective and level of destruction. [It] may be defined descriptively (e.g., vent in center of roof) by grid reference or geolocation.’ Joint Publication 3–60, supra n. 38, p. GL-6.

84. PI, supra n. 17, Art. 51(4)(a). An excellent example was Iraqi use of the SCUD missiles against cities during the Gulf War of 1991.

85. Off Target, supra n. 13, p. 40.

86. Pape, R.A., ‘The true worth of airpower’, 83 Foreign Affairs (2004) pp. 116 at 117–119CrossRefGoogle Scholar.

87. Off Target, supra n. 13, p. 21.

88. CIHL, supra n. 33, ch. 5. For implementation in an Additional Protocol I non-Party's military manual, see NWP 1–14M, supra n. 64, para. 8.1.2.1.

89. Off Target, supra n. 13, p. 21.

90. Ibid., p. 22.

91. Ibid., p. 40. The report referenced PI, supra n. 17, Art. 57(2)(a).

92. Ibid., p. 21. In Joint Publication 3–60, supra n. 38, p. GL 6, battle damage assessment is defined as follows:

‘The timely and accurate estimate of damage resulting from the application of military force, either lethal or non-lethal, against a predetermined objective. Battle damage assessment can be applied to the employment of all types of weapon systems (air, ground, naval, and special forces weapons systems) throughout the range of military operations. Battle damage assessment is primarily an intelligence responsibility with required inputs and coordination from the operators. Battle damage assessment is composed of physical damage assessment, functional damage assessment, and target system assessment.’

93. Off Target, supra n. 13, p. 24.

94. Commentary AP, supra n. 55, para. 2198.

95. Ibid., para. 2199. ‘Finally, one delegation remarked that the identification of objectives depended to a large extent on the technical means of detection available to the belligerents. This remark seems to be correct. For example, some belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment.’

96. The Israeli targeted killing strategy is illustrative, for despite their generally compliance with IHL, they are nevertheless roundly condemned by critics. See Amnesty International, ‘Israel, and the Occupied Territories: state assassinations and other unlawful killings’, 21 February 2001 <http://www.amnesty.org/library/index/ENGMDE15005200l>. The Israel Defense Forces Judge Advocate General has set four conditions for conducting such strikes: ‘(1) well-supported information showing the terrorist will plan or carry out a terror attack in the near future; (2) after appeals to the Palestinian Authority calling for the terrorist's arrest have been ignored; (3) attempts to arrest the suspect by use of IDF troops have failed; (4) the assassination is not to be carried out in retribution for events of the past. Instead, it can only be done to prevent attacks in the future which are liable to toll multiple casualties’, in Ha'aretz, 4 February 2002.

97. As opposed to TST targeting of fleeting mobile targets, such as leadership.

98. Off Target, supra n. 13, p. 42.

99. Figures in US CENTCOM Air Forces, Assessment and Analysis Division, ‘Operation Iraqi Freedom — by the numbers’, 30 April 2003 <http://www.globalsecurity.org/military/library/report/2003/uscentaf_oif_report_30apr2003.pdf> ; UK Ministry of Defence, ‘Operations in Iraq: lessons for the future, (no date), para. 6.6.

100. On targeting electrical capability, see Crawford, J.W., ‘The law of noncombatant immunity and the targeting of national electrical power systems’, 21 Fletcher Forum of World Affairs (1997) p. 101Google Scholar.

101. Human Rights Watch Report, ‘Needless deaths in the Gulf War: civilian casualties during the air campaign and violations of the laws of war’ (1991) pp. 180–185Google Scholar.

102. Because damage to the latter is harder to repair, it imposes hardships on the civilian population for a longer period. In doing so, Coalition planners complied with the obligation to select that target causing the least collateral damage and incidental injury from among those yielding a similar military advantage set forth in PI, supra n. 17, Art. 57(3).

103. PI, supra n. 17, Art. 57(2)(a)(ii).

104. HRW uncovered no civilian casualties resulting from such attacks. Off Target, supra n. 13, p. 46.

105. Ibid.

106. Ibid., p. 48.

107. Litigation in the European Court of Human Rights ensued, but was eventually dismissed on jurisdictional grounds. Banković and Others v. Belgium and 16 Other Contracting States., Decision of 12 December 2001, reprinted in 41 ILM (2002) p. 517Google Scholar.

108. PI, supra n. 17, Art. 52(2). Protocols II and III of the Conventional Weapons Convention and the Second Protocol to the Cultural Property Convention, as well as many military manuals and training material (including those of the US), repeat this formula. Art. 2(6) Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II) 1980, as amended 1996, 35 ILM (1980)p.1206; Art. 1 (3) Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) 1980, 1342 UNTS p. 171; Art. 1(f) Second Protocol to the Hague Convention of 1954 for Protection of Cultural Property in Event of Armed Conflict 1999, 38 ILM (1999) p. 769Google Scholar. For manuals and training material, see Judge Advocate General's School, Operational Law Handbook (2004) p. 12; NWP 1–14M, supra n. 64, para. 8.1.1; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, Oxford University Press 2004) para. 5.4.1Google Scholar.

109. NWP 1–14M, supra n. 64, para. 8.1.1. This assertion is labeled a ‘statement of customary international law’. The Handbook cites General Counsel, DoD, Letter of 22 September 1972, reprinted in 67 AJIL (1973) p. 123Google Scholar, as the basis for this characterisation. US joint doctrine reinforces this approach by providing that ‘[c]ivilian objects consist of all civilian property and activities other than those used to support or sustain the adversary's warfighting capability’. Joint Publication 3–60, supra n. 38, p. A-2.

110. Rogers, A.P.V., Law on the Battlefield, 2nd edn. (Manchester, Juris Publishing 2004) pp. 83–84Google Scholar.

111. Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War 1956, Annex. The list, which is not included with the ICRC on-line text (<http://www.icrc.org/ihl/nsf>), is reprinted in the ‘Final report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’, 13 June 2000, para. 39, reprinted in 39 ILM (2000) pp. 1257 at 1258Google Scholar.

112. HCP, supra n. 20, Art. 8(1)(a).

113. The attack was addressed in the report to the Prosecutor, supra n. 111, paras. 71–79. The Prosecutor announced her decision not to proceed to the Security Council on 2 June 2000. UN Doc. S/PV.4150.

114. Ibid., para. 55.

115. Off Target, supra n. 13, p. 49.

116. According to the ICRC commentary on the definition of military objective, ‘[t]he criterion of purpose is concerned with the intended future use of an object, while that of use is concerned with its present function.’ Commentary AP, supra n. 55, para. 2022.

117. Off Target, supra n. 13, pp. 48–49.

118. For instance, on 29 March, Tomahawk cruise missiles were used against the Iraqi Ministry of Information. US CENTCOM News Release No. 03–03–82, ‘MOI building targeted today’, 29 March 2003. On 31 March 2003 Coalition forces targeted a ‘regime office complex’, which also housed the Iraqi National Olympic Committee and the Ministry of Youth. As with the leadership strikes, the press release announcing the strike stated ‘Coalition forces target only lawful military targets’. US CENTCOM News Release No. 03–03–112, ‘Coalition Forces target regime office complex’, 31 March 2003.

119. In many cases, they were used for military purposes. On 30 March 2003 US Marines were directed to a Baath Party headquarters. When they arrived Iraqi forces fired on them. Following a short battle, the Marines entered the complex finding AK.-47 assault rifles, rocket-propelled grenades and an anti-aircraft artillery weapon. US CENTCOM News Release No. 03–03–105, ‘U.S. Marines destroy Ba'ath Party headquarters’, 31 March 2003.

120. Cluster munitions consist of bombs or rockets with dispensers that contain explosive submunitions. The dispenser opens over the target, thereby allowing the submunitions to spread over an area. On cluster munitions and IHL, see Herthel, T.J., ‘On the chopping block: cluster munitions and the law of war’, 51 Air Force LR (2001) p. 229Google Scholar. On the type and numbers of weapons dropped, see ‘Operation Iraqi Freedom — by the numbers’, supra n. 99, p. 11; ‘Operations in Iraq: lessons for the future’, supra n. 99, p. 86.

121. For an excellent presentation of concerns surrounding the use of cluster munitions, see Human Rights Watch, ‘Cluster munitions and international humanitarian law: the need for better compliance and stronger rules’ (2004).

122. This can be so in populated areas as well.

123. The residual effect of unexploded submunitions is further mitigated by the new Protocol on Explosive Remnants of War, UN Doc. CCW/MSP/2003/2, 27 November 2003.

124. In an analogous case, General Stanislav Galić, commander of the Sarajevo Romanija Corps (SRK), was convicted by the ICTY of indiscriminate shelling and sniping (a campaign of terror) of Sarajevo. Prosecutor v. Stanislav Galić, Case No. IT-98–29-T, Judgement, Trial Chamber, 5 December 2003.

125. PI, supra n. 17, Art. 51(5)(a). But whether this has been done depends on such factors as weapons availability and extent of military objective dispersal; every determination is of necessity case-by-case.

126. Human Rights Watch Report 2002, supra n. 13.

127. Off Target, supra n. 13, pp. 56–63.

128. Ibid., p. 85.

129. See <http://www.army-technology.com/projects/mlrs/>.

130. Off Target, supra n. 13, p. 96.

131. Ibid., p. 98.

132. Ibid., pp. 92–97.

133. Counter-battery fire involves firing back at enemy artillery, rockets, or mortars to neutralise or destroy them.

134. See discussion in M.N. Schmitt, ‘The impact of high and low-tech warfare on the principle of distinction’, Briefing Paper for Harvard University's IHL Research Initiative, November 2003.

135. DoD News Briefing, ‘Saddam's use of human shields and deceptive sanctuaries’, Defense Intelligence Agency, 26 February 2003 <http://www.defenselink.mil/news/Feb2003/g030226-D-9085M.html>.

136. Purdum, T.S., ‘Nighttime ambush in Iraqi city’, in The New York Times, 5 04 2003, p. 1Google Scholar; Filkins, D., ‘In the field choosing targets: Iraqi fighters or civilians? hard decision for copters, in The New York Times, 31 03 2003, p. 5Google Scholar.

137. US CENTCOM News Release No. 03–04–13, ‘MEF roots out paramilitaries, destroys several Ba'ath Party headquarters’, 1 April 2003.

138. This prescription tracks that found in the 1949 Fourth Geneva Convention, Art. 28: ‘The presence of a protected person may not be used to render certain points or areas immune from military operations.’ The prohibition only applies vis-à-vis those who ‘find themselves…in the hands of a Party, to the conflict or Occupying Party of which they are not nationals’. It would not apply to Iraqi forces using Iraqis as shields, GC IV, supra n. 23, Art. 4.

139. CIHL, supra n. 33, Rule 97. See also NWP 1–14M, supra n. 64, para. 11.2; Rome Statute, supra n. 32, Art. 8(2)(b)(xxiii).

140. Iraq's use of human shields during the first Gulf War was labeled by the UN General Assembly as a ‘most grave and blatant violation of Iraq's obligations under international law’, GA Res. 46/134 (1991). In May 1995, Bosnian Serbs seized UNPROFOR peacekeepers and used them as human shields against NATO airstrikes. In response, the UN condemned the action, demanded release, and authorised the creation of a rapid reaction force to handle such situations, SC Res. 998, 16 June 1995.

141. PI, supra n. 17, Art. 51(3). The Rome Statute adopts this standard by making it a war crime to intentionally attack civilians unless they are ‘taking direct part in hostilities’, supra n. 32, Art. 8(2)(b)(i).

142. ‘And then, the other target category that is a challenge for us is where the human shields that we've talked of before might be used. And you really have two types of human shields. You have people who volunteer to go and stand on a bridge or a power plant or a water works facility, and you have people that are placed in those areas not of their own free will. In the case of some of the previous use of human shields in Iraq, Saddam placed hostages, if you will, on sensitive sites in order to show that these were human shields, but, in fact, they were not there of their own free will. Two separate problems to deal with that, and it requires that we work very carefully with the intelligence community to determine what that situation might be at a particular location.’

DoD News Transcript, ‘Background briefing on targeting’, 5 March 2003 <http://www.defenselink.mil/news/Mar2003/t03052003_t305targ.html>. HRW takes the opposite position. Human Rights Watch, ‘International humanitarian law issues in a potential war in Iraq’, Briefing Paper, 20 February 2002 <http://www.hrw.org/backgrounder/arms/iraq0202003.htm#35;l>.

143. Israel Defense Forces have been ordered not to use live ammunition against children. Weiner, J.R., ‘Co-existence without conflict: the implementation of legal structures for Israeli-Palestinian cooperation pursuant to the interim peace agreements’, 26 Brooklyn JIL (2000) p. 591, n. 407Google Scholar.

144. Off Target, supra n. 13, p. 67.

145. PI, supra n. 17, Art. 51(8).

146. ‘[S]tandards of conduct should apply equally to the attacker and defender. In other words, that the responsibility to minimize collateral injury to the civilian population not directly involved in the war effort remains one shared by the attacker and the defender; and that the nation that uses its civilian population to shield its own military forces violates the law of war at the peril of the civilians behind whom it hides. … At the same time, however, targeteers and judge advocates should consider the necessity of hitting the particular target, the expected results versus expected collateral damage, and ways to minimize civilian casualties, if possible.’

US Air Force, Air Force Operations and the Law: A Guide for Air and Space Forces (Washington, DC, Judge Advocate General's Department 2002) p. 293Google Scholar. See also the discussion in Joint Publication 3–60, supra n. 38, pp. A-2 and A-3, and Department of the Air Force, USAF Intelligence Targeting Guide, 1 February 1998, A4.2.1.2.

147. And A.P.V. Rogers has argued that: ‘…a tribunal considering whether a grave breach has been committed [a disproportionate attack] would be able to take into account when considering the rule of proportionality the extent to which the defenders had flouted their obligation to separate military objectives from civilian objects and to take precautions to protect the civilian population…the proportionality approach taken by the tribunals should help to redress the balance which would otherwise be tilted in favour of the unscrupulous’. Rogers, supra n. 110, p. 129. See also Parks, W. Hays, ‘Air war and the law of war’, 32 Air Force LR (1992) pp. 1 at 163Google Scholar.

148. The sole possible exception is the doctrine of belligerent reprisal. A belligerent reprisal is an unlawful, but proportionate, act taken to compel one's adversary to desist in its own unlawful course of conduct. But it is an extremely limited doctrine and one that is increasingly rejected as out of step with contemporary accepted methods of warfare. Further, it is based not on the effort to foster a fair (equal) fight, but rather to force the party violating humanitarian law back into compliance. On reprisals, see Kalshoven, F., ‘Belligerent reprisals’, 12 Revue de droit pénal militaire et de droit de la guerre (1971) pp. 265–279Google Scholar. Additional Protocol I went far beyond prior humanitarian law in prohibiting reprisals, a fact that led in part to US opposition to the treaty. See PI, supra n. 17, Art. 51(6) (civilians and civilian population), Art. 52(1) (civilian objects), Art. 53 (cultural objects and places of worship), Art. 54(4) (objects indispensable to the survival of the civilian population), Art. 55(2) (the natural environment), and Art. 56(4) (dams, dykes and nuclear electrical generating stations).

149. PI, supra n. 17, Art. 58. See also CIHL, supra n. 33, ch. 6.

150. GC I, supra n. 23, Art. 19.

151. PI, supra n. 17, Art. 53(b). See also HIVR, supra n. 19, Art. 4.

152. Off Target, supra n. 13, pp. 72–73. On misuse of religious locations, see also US CENTCOM News Release No. 03–04–28, ‘Regime shows disregard for historical, religious sites in Holy City’, 2 April 2003; US CENTCOM News Release No. 03–04–65, ‘Regime use of Baghdad mosques and hospitals’, 6 April 2003.

153. See also Rome Statute, supra n. 32, Art. 8(2)(b)(ix).

154. PI, supra n. 17, Art. 52(2).

155. However, this provision may not restate customary IHL, for some distinguished commentators have argued that it impermissibly shifts the burden of proof as to the nature of an object to the attacker. See, e.g., Hays Parks, supra n. 147, p. 163; Final Report to Congress on the Conduct of the Persian Gulf War (1992) p. 616.

156. See, e.g., Kelly, M. and Rostrup, M., ‘Identify yourselves: coalition soldiers in Afghanistan are endangering air workers’, in The Guardian, 1 02 2002, p. 19Google Scholar. For a comprehensive legal analysis, see Parks, W. Hays, ‘Special Forces' wear of non-standard uniforms’, 4 Chicago JIL (2003) p. 493Google Scholar.

157. See text, supra n. 51. See also HIVR, supra n. 19, Art. 1(2); GC I, supra n. 23, Art. 13(2)(b); GC II, supra n. 23, Art. 13(2)(b).

158. ‘It is generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, to be inherent in the regular armed forces of states. Accordingly, it was considered unnecessary and redundant to spell them out in the Conventions.’ Bothe, M. et al. , New Rules for Victims of Armed Conflict (The Hague, Martinus Nijhoff Publishers 1982) p. 234Google Scholar. See also discussion in CIHLS, supra n. 33, p. 15.

159. See Mohammed Ali et al. v. Public Prosecutor [1969] AC 430, 449Google Scholar; Ex parte Quirin et al. 317 US 1 (1942)Google Scholar.

160. PI, supra n. 17, Art. 44(3).

161. Despite its appearance in CIHL, supra n. 33, Rule 106. The US position on Protocol I is authoritatively set out in Memorandum for Assistant General Counsel (International), Office of the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications, 8 May 1986 (on-file with author). See also Matheson, M.J., ‘The United States position on the relation of customary international law to the 1977 Protocols Additional to the 1949 Geneva Conventions’, 2 Amer. Univ. JIL & Pol. (1987) p. 419Google Scholar.

162. Pictet, J., ed., Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War (Geneva, ICRC 1960) p. 52Google Scholar; Commentary AP, supra n. 55, paras. 1577–1578.

163. This point is reflected in CIHL, supra n. 33, Rule 106.

164. The classic article on the subject is Baxter, R.R., ‘So-called “unprivileged belligerency”: spies, guerrillas and saboteurs’, 29 BYIL (1952) p. 323Google Scholar.

165. HIVR, supra n. 19, Art. 23(b). Perfidy is distinguished from ruses, which are acts intended to mislead an adversary and cause him to act recklessly, but which do not involve false claims of protected status. Ruses are lawful, HIVR, ibid., Art. 24; PI, supra n. 17, Art. 37(2).

166. HIVR, supra n. 19, Art. 23(f).

167. CIHL, supra n. 33, ch. 18; International Military Tribunal (Nuremberg), Judgement and Sentences, 1 October 1946, reprinted in 41 AJIL (1947) pp. 172 at 218.

168. PI, supra n. 17, Art. 37(1).

169. Ibid., Art. 37(l)(c).

170. Dinstein, supra n. 32, p. 203.

171. PI, supra n. 17, Art. 85(3)(f).

172. Hays Parks, supra n. 156, pp. 524–539 and 541–542.

173. CIHL, supra n. 33, p. 224; NWP 1–14M, supra n. 64, para. 12.7. US forces also train to this standard. See, e.g., US Army Judge Advocate General's School, Law of War Handbook (2005) p. 192. See also British Manual, supra n. 108, para. 5.9.2(c) (although they are party to Additional Protocol I and, therefore, their manual has less relevance to discerning customary law).

174. Doswald-Beck, L., ed., San Remo Manual on International Law Applicable to Armed conflicts at Sea (Cambridge, Cambridge University Press 1995) Rule 111CrossRefGoogle Scholar.

175. Official Records, Vol. XV, Doc. CDDH/236/Rev.l, para. 17.

176. PI, supra n. 17, Art. 51 (3).

177. The combatant privilege to use force only applies to application of force against enemy combatants or those directly participating. Absent that privilege, soldiers may only use force directly against civilians under common law principles.

178. See Ex parte Quirin, 317 US 1 at 32. The Quirin decision has been criticised for its deviation from law of armed conflict principles by top scholars and practitioners in the field. For instance, W. Hays Parks has noted that ‘Quirin is lacking with respect to some of its law of war scholarship’, Hays Parks, supra n. 156, p. 493 at n. 31.

179. Dinstein, supra n. 32, p. 234; Baxter, supra n. 164. See also Jinks, D., ‘The declining significance of POW status’, 45 Harvard JIL (2004) pp. 367 at 436–439Google Scholar (adopting an especially permissive approach).

180. Operational Law Handbook, supra n. 108, p. 23.

181. Permitted purposes are set forth in GC I, supra n. 23, Arts. 24–27 and 38–44; GC II, supra n. 23, Arts. 22, 24–25, 27, 36–39 and 41–44; GC IV, supra n. 23, Arts. 18–22; PI, supra n. 17, Arts. 8, 18 and 22–23.

182. See, e.g., NWP 1–14M, supra n. 64, para. 12.2; German Federal Ministry of Defense Manual, Humanitarian Law in Armed Conflicts (Bonn, 1992) sec. 640Google Scholar.

183. Lieber Code, supra n. 45, Art. 117. See also 1899 HR, supra n. 23, Art. 23(f); HIVR, supra n. 19, Art. 23(f); Arts. 27–28 Geneva Convention 1906, ICRC treaty database <http://www.icrc.org/ihl>; Arts. 24, 28 Geneva Convention 1929, ibid.; GC I, supra n. 23, Arts. 39, 44, 53, 54; GC II, supra n. 23, Arts. 41, 44, 45; PI, supra n. 17, Art. 38(1); NWP 1–14M, supra n. 64, para. 11.9.6; British Manual, supra n. 108, para. 5.10(a); German Manual, supra n. 182, sec. 641. See also Project of an International Declaration concerning the Laws and Customs of War (1874 Brussels Declaration), Art. 13(f), ICRC treaty database; The Laws of War on Land (1880 Oxford Manual), Art. 8(d), ibid.

184. CIHL, supra n. 33, Rule 59

185. See, e.g., Collins, G., ‘Allied advances, tougher Iraqi resistance, and a hunt in the Tigris’, in The New York Times, 24 03 2003, p. 1Google Scholar; Knowlton, B., ‘Bush tells of “good progress” but says war has just begun’, in The International Herald Tribune, 24 03 2003, p. 6Google Scholar.

186. Lieber Code, supra n. 45, Art. 71; Brussels Declaration, supra n. 183, Art. 13; Oxford Manual, supra n. 183, Art. 9(b); 1899 HR, supra n. 23, Art. 23(c); HIVR, supra n. 19, Art. 23(c); PI, supra n. 17, Art. 41(2)(b). Violation is a grave breach pursuant to PI, ibid., Art. 85(3)(e)

187. CIHL, supra n. 33, Rule 65

188. See Sands, P., Lawless World: America and the Making and Breaking of Global Rules (London, Penguin 2005)Google Scholar.