THE LAWS OF WAR IN THE WAR ON TERROR

Israel Yearbook on Human Rights

Volumn 32, Issue , 2002, Pages 193-245

  Roberts, Adam ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85174945022     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789004423169_006     Document Type: Chapter

References (121)

1. This is a revised and updated version of "Counter-terrorism, Armed Force and the Laws of War", 44 Survival (quarterly journal of International Institute for Strategic Studies, London) 7-32 (Spring, 2002). It incorporates information available up to 15 Dec. 2002. I am grateful for help received from a large number of people who read drafts, including particularly Dr. D. Allin, Dr. K. Anderson, Dr. M.-J. Fox, Col. C. Garraway, Dr. H.-P. Gasser, R. Guelff, Commander S. Haines and Prof. M. Schmitt. Also to participants at the Carr Centre Conference on "Humanitarian Issues in Militaiy Targeting", Washington DC, March 7-8, 2002; the US Naval War College Conference on "International Law & the War on Terrorism", Newport, R.I., June 26-28, 2002; and the International Society for Military Law and the Law of War Conference on "Terrorism and the Military: International Legal Implications", The Hague, 14-15 Nov. 2002. Versions of this paper have also appeared on the website of the Social Science Research Council, New York: http://www.ssrc.org.
2. This is a revised and updated version of "Counter-terrorism, Armed Force and the Laws of War", 44 Survival (quarterly journal of International Institute for Strategic Studies, London) 7-32 (Spring, 2002). It incorporates information available up to 15 Dec. 2002. I am grateful for help received from a large number of people who read drafts, including particularly Dr. D. Allin, Dr. K. Anderson, Dr. M.-J. Fox, Col. C. Garraway, Dr. H.-P. Gasser, R. Guelff, Commander S. Haines and Prof. M. Schmitt. Also to participants at the Carr Centre Conference on "Humanitarian Issues in Militaiy Targeting", Washington DC, March 7-8, 2002; the US Naval War College Conference on "International Law & the War on Terrorism", Newport, R.I., June 26-28, 2002; and the International Society for Military Law and the Law of War Conference on "Terrorism and the Military: International Legal Implications", The Hague, 14-15 Nov. 2002. Versions of this paper have also appeared on the website of the Social Science Research Council, New York: http://www.ssrc.org.
3. For texts of treaties and other international documents on terrorism, and useful discussion thereof, see esp. Terrorism and International Law (R. Higgins & M. Flory eds., 1997). For more recent treaties and UN resolutions see the information on terrorism on the UN website: www.un.org.
4. For texts of treaties and other international documents on terrorism, and useful discussion thereof, see esp. Terrorism and International Law (R. Higgins & M. Flory eds., 1997). For more recent treaties and UN resolutions see the information on terrorism on the UN website: www.un.org.
5. "Crimes against humanity", defined in the Charter and Judgment of the International Military Tribunal at Nuremburg in 1945-46, are more fully defined in Art. 7 of the 1998 Rome Statute of the International Criminal Court, which entered into force on 1 July 2002 (37 I.L.M. 999). This Statute does not apply retroactively. On 6 May 2002 the US informed the Depositary that it did not intend to become a party to the Treaty and accordingly has no legal obligations arising from its signature.
6. Full titles, texts and sources of treaties on the laws of war mentioned in this survey may be found in Documents on the Laws of War (A. Roberts & R. Guelff eds., 3rd ed., 2000); and in The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (D. Schindler & J. Toman eds., 3rd ed., 1988). Treaty texts are also available at the International Committee of the Red Cross website: http://www.icrc.org/eng.
7. Full titles, texts and sources of treaties on the laws of war mentioned in this survey may be found in Documents on the Laws of War (A. Roberts & R. Guelff eds., 3rd ed., 2000); and in The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (D. Schindler & J. Toman eds., 3rd ed., 1988). Treaty texts are also available at the International Committee of the Red Cross website: http://www.icrc.org/eng.
8. For an authoritative account of the origins and meanings of common Art. 1 see F. Kalshoven, "The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit", 2 Y.B. Int'l Humanit. L. 3-61 (1999).
9. Chairman of the Joint Chiefs of Staff Instruction, Standing Rules of Engagement for US Forces, Ref. CJCSI 3121.01A, 15 Jan. 2000, at A-9. A similar but not identical statement had appeared in the Standing ROE of 1 Oct. 1994, which this document replaces. A number of other US military-doctrinal statements are equally definite that US forces will always apply the law of armed conflict.
10. 1949 Geneva Convention III Relative to the Treatment of Prisoners of War, Arts. 4(B)(2) and 122. See also the references to "neutral and other States not Parties to the conflict" in the 1977 Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Arts. 9, 19, 31 etc.
11. Rumsfeld, at the end of his opening statement at a news briefing at the Pentagon on 4 Dec. 2001, US DoD website: http://www.defenselink.mil/news/Dec2001. He said this in a context of stressing that the US had taken "extraordinary measures to avoid civilian casualties in this campaign".
12. In an assessment of the events of 2001, Christopher Greenwood has argued that "proportionality in self-defence looks forward. The test is whether the force used is proportionate to the threat it is designed to meet, not to the events of the past". C. Greenwood, "International Law and the 'War Against Terrorism"', 78 Int'l Aff 313-14 (April, 2002).
13. US Army, The Law of Land Warfare, FM 27-10, Department of the Army Field Manual, Washington DC, July 1956, revised 15 July 1976, para. 41.
14. A subsequent official US exposition of the principle states: "Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life and physical resources may be applied". US Navy, The Commander's Handbook of the Law of Naval Operations, NWP 1-14M, para. 5.2 (Department of the Navy, 1995).
15. US and NATO strategic doctrine is briefly discussed below in Part IV (War in Afghanistan), sec. (c).
16. By contrast, "antiterrorism" has been defined as "defensive measures to reduce the vulnerability of individuals and property to terrorist attacks". Both definitions are from US Army, Operational Law Handbook (2002), International & Operational Law Department, The Judge Advocate General's School, US Army, Charlottesville, Virginia, issued 15 June 2001, Ch. 18, at 3. This annual publication is available at: https://wwwjagcnet.anny.mil/JAGCNETIntemet/Homepages/AC/CLAMO-Public.nsf
17. By contrast, "antiterrorism" has been defined as "defensive measures to reduce the vulnerability of individuals and property to terrorist attacks". Both definitions are from US Army, Operational Law Handbook (2002), International & Operational Law Department, The Judge Advocate General's School, US Army, Charlottesville, Virginia, issued 15 June 2001, Ch. 18, at 3. This annual publication is available at: https://wwwjagcnet.anny.mil/JAGCNETIntemet/Homepages/AC/CLAMO-Public.nsf
18. In ratifying the 1977 Protocol I in 1998, the United Kingdom made a statement that the term "armed conflict" denotes "a situation which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation".
19. 1977 protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Art. 1.
20. For fuller discussion, and evidence that the concern about the hazards of coping with terrorism in a laws-of-war framework is not new, see my chapter in Terrorism and International Order, esp. 14-15 (L. Freedman et al., eds., 1986).
21. President Reagan's letter of transmittal of the 1977 Additional Protocol II to the US Senate. Treaty Doc. No. 2, 100th Congress, 1st Session, at III (1987), reprinted in 81 Am. J. Int'l L. 910-12(1987).
22. R. Thompson, Defeating Communist Insurgency: Experiences from Malaya and Vietnam 52 (1966). From 1957 to 1961 the author was successively Deputy Secretary and Secretary for Defence in Malaya. As his and other accounts make clear, in the course of the Malayan Emergency there were certain derogations from human rights standards, including detentions and compulsory relocations of villages.
23. Report of the Committee of Privy Counsellors Appointed to Consider Authorized Procedures for the Interrogation of Persons Suspected of Terrorism, Cmnd. 4901, at 1-2 and 11-23 (Her Majesty's Stationery Office, London, 1972).
24. Two key directives issued by US Military Assistance Command, Vietnam, on the question of eligibility for PoW status are (1) Annex A, "Criteria for Classification and Disposition of Detainees", part of Directive no. 381-46 of 27 December 1967; and (2) Directive no. 20-5 of 15 March 1968, "Inspections and Investigations: Prisoners of War-Determination of Eligibility". Both were reprinted in 62 Am. J. Int'l L. 766-75 (1968). The quotation is at 767.
25. Professor Y. Blum, Permanent Representative of Israel, at UN Security Council, 5 June 1982. S.C. Off. Ree., 2374meeting, at 7. The Security Council unanimously demanded an end to all military activities and a withdrawal of Israeli forces from Lebanon in Res. 508 and 509 of 5 and 6 June 1982 respectively.
26. Commission of Inquiry into the Events at the Refugee Camps in Beirut: Final Report 53-54 (Jerusalem, 1983). The Report is reprinted in 22 I.L.M. 473 (1983). The Commission was chaired by Y. Kahan, President of the Supreme Court of Israel.
27. In a case concerning detainees in Ansar Prison, on which the Israeli Supreme Court issued a judgment on 11 May 1983, the Israeli authorities asserted that the prisoners were "hostile foreigners detained because they belong to the forces of terrorist organizations, or because of their connections or closeness to terrorist organizations". Israel, while refusing them PoW status, claimed to observe "humanitarian guidelines" of the 1949 Geneva Convention IV. For details of the case see 13 Israel Y.B. Hum. Rts. 360-64 (1983).
28. The name Operation Enduring Freedom was announced by Donald Rumsfeld at a press conference on 25 Sept. 2001: http://www.defenselink.mil/news/Sep2001/briefings.html. Operation Enduring Freedom, he said, was not the "umbrella phrase" for the entire antiterror campaign, but referred to a "broad, sustained multifaceted effort". It has been used to refer to the coalition military operations in and around Afghanistan that began on 7 Oct. 2001. (It does not encompass the operations of the International Security Assistance Force in Afghanistan, mentioned below.)
29. "Northern Alliance" is a colloquial term for the "United Islamic Front for the Salvation of Afghanistan", which had been formed on 13 June 1997.
30. Eight reporters died in the period Oct-Dec. 2001, several of them due to banditry rather than military operations. Information supplied by N. Gowing of BBC World Television, 26 Jan. 2002.
31. UN S.C. Res. 1193 of 28 Aug. 1998, passed unanimously. Identical wording had been used in S.C. Res. 764 of 13 July 1992 on the war in Bosnia and Herzegovina. This wording did not necessarily mean that the Security Council viewed these wars as international armed conflicts, but it did mean that international standards had to be observed in them. Nor did it indicate that the Council considered any prisoners taken in these wars to have the full status of PoWs; but it implied that they should receive humane treatment in accord with international standards.
32. See esp. H.-P. Gasser, "Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea and Lebanon", 33 Am. U. L. Rev. 145-61 (1983).
33. UN S.C. Res. 1368 of 12 Sept. 2001 and 1373 of 28 Sept. 2001.
34. ISAF was established in Afghanistan in Jan. 2002 on the basis of UN S.C. Res. 1386 of 20 Dec. 2001, passed unanimously. Details of the Military Technical Agreement between ISAF and the Interim Administration, plus annexes, are available on UK Ministry of Defence website at: http://www.operations.mod.uk/isafmta.doc.
35. On 11 Sept. 2002 Afghanistan was to accede to the 1997 Ottawa Convention on LandMines. Information from UN website, http://www.un.org, accessed 18 Sept. 2002.
36. Afghanistan is nonetheless bound by the complete prohibition on possession and use of biological weapons in the 1972 Biological Weapons Convention, which it ratified on 26 March 1975. It is not a party to the 1993 Chemical Weapons Convention, which it signed on 14 Jan. 1993 but has not ratified.
37. The original ICRC Memorandum to the US and UK Governments was issued on 28 Sept. 2001, and the replacement document on 5 Oct.
38. ICRC, Memorandum to Afghan Government, Sept. 2001.
39. "Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law", Communication to the Press 01/47, ICRC, Geneva, 24 Oct. 2001, available at: http://www.icrc.org.
40. UN S.C. Res. 1267 of 15 Oct. 1999. See also S.C. Res. 1076 of 22 Oct. 1996 and 1193 of 28 Aug. 1998, both of which, in addressing the ongoing conflict in Afghanistan, referred to the problem of terrorism there, and called upon States to take specific actions, most notably to end the supply of arms and ammunition to all parties to the conflict.
41. President G.W. Bush, Address to a Joint Session of Congress and the American People, Washington DC, 20 Sept. 2001. The peroration added that God is not neutral. Text at US Embassy website: http://www.usembassy.org.uk/bush83.html.
42. The principle of discrimination, which is about the selection of weaponry, methods and targets, includes the idea that non-combatants and those hors de combat should not be deliberately targeted.
43. President Bush, televised address announcing the start of military strikes in Afghanistan, 7 Oct. 2001. Text published in International Herald Tribune, 8 Oct. 2001, at 3. Text also available at: http://www.usembassy.org.ukybush91.html.
44. R. Myers, interview with This Week on ABC TV, 21 Oct. 2001: http://www.defenselink.mil/news/0ct2001/briefings.html.
45. Rumsfeld, Remarks outside ABC TV Studio, 28 Oct. 2001: http://www.defenselink.mil/news/0ct2001/briefings.html.
46. These preliminary figures come from interviews in the US in March 2002, and from E. Schmitt, "Improved U.S. Accuracy Claimed in Afghan Air War", New York Times, 9 Apr. 2002, at A-16 (reporting on a detailed Pentagon assessment).
47. Corre spondence between ICRC and US Department of Defense, also UK Secretary of State for Defence, Nov. 2001.
48. On 19 Mar. 2002 a CNN report datelined Washington stated that a preliminary Pentagon investigation into the bombings of the ICRC warehouse indicated that numerous clerical errors had led to the mistaken bombings, that the US commander in charge of the air campaign, Lt. Gen. C. Wald, had "exceeded his authority in ordering the strike" of 26 October, and that a key issue was that, while the target had been placed on a "No Strike List" at the Pentagon, it was inadvertently left off a separate "No Strike List" maintained by the US Central Command in Tampa, Florida.
49. See e.g. the early reports by R.L. Parry & J. Huggler in The Independent, 2 Dec. 2001, also available at: http://www.independent.co.uk.
50. D. Filkins, "Flaws in U.S. Air War Left Hundreds of Civilians Dead", New York Times, 21 July 2001: http://www.nytimes.com.
51. On 13 Sept. 2002 two US pilots who mistakenly bombed and killed Canadian troops in Afghanistan on 18 April 2002 were charged - the first criminal charges against US pilots in connection with the events in Afghanistan. News report in The Times, 14 Sept. 2002, at 16.
52. M. W. Herold, "A Dossier on Civilian Victims of US Aerial Bombing of Afghanistan: A Comprehensive Accounting", 19 Dec. 2001, University of New Hampshire website: http://pubpages.unh.edu/~mwherold/. There are updates on this site.
53. Criticisms of Herold's methodology included the following: (1) The calculations leading to the total figures were not transparent. The author has informed me that the December figure was not intended to suggest total accuracy. (2) Unavoidably, in view of time constraints, the study relied heavily on media reports, some of them extremely dubious. (3) Some incidents were counted twice in the December total, e.g. due to different place names being used in reports. (4) In some instances A1 Qaeda deaths, and possibly Taliban deaths, may have been reported as civilian deaths. On the other hand it is probable that some civilian casualties of bombing went unreported and were thus omitted from the report. For a strong critique, see the paper by J.C. Isaac of Indiana University, "Civilian Casualties in Afghanistan: The Limits of Herold's 'Comprehensive Accounting'", 10 Jan. 2002, available at: http://www.indiana.edu/~iupolsci/docs/doc.htm. In August 2002 Herold stated that "the figure for the October to December period should have been between 2,650 and 2,970 civilian deaths", and that "between 3,125 and 3,620 Afghan civilians were killed between October 7 and July 31", Herold, "Counting the Dead", The Guardian, 8 Aug. 2002, at 17.
54. Criticisms of Herold's methodology included the following: (1) The calculations leading to the total figures were not transparent. The author has informed me that the December figure was not intended to suggest total accuracy. (2) Unavoidably, in view of time constraints, the study relied heavily on media reports, some of them extremely dubious. (3) Some incidents were counted twice in the December total, e.g. due to different place names being used in reports. (4) In some instances A1 Qaeda deaths, and possibly Taliban deaths, may have been reported as civilian deaths. On the other hand it is probable that some civilian casualties of bombing went unreported and were thus omitted from the report. For a strong critique, see the paper by J.C. Isaac of Indiana University, "Civilian Casualties in Afghanistan: The Limits of Herold's 'Comprehensive Accounting'", 10 Jan. 2002, available at: http://www.indiana.edu/~iupolsci/docs/doc.htm. In August 2002 Herold stated that "the figure for the October to December period should have been between 2,650 and 2,970 civilian deaths", and that "between 3,125 and 3,620 Afghan civilians were killed between October 7 and July 31", Herold, "Counting the Dead", The Guardian, 8 Aug. 2002, at 17.
55. Rumsfeld, Interview on C-SPAN, 8 Jan. 2002: http://www.defenselink.mil/news/Jan2002/briefings.html.
56. D. Filkins, "Flaws in U.S. Air War Left Hundreds of Civilians Dead", New York Times, 21 July 2002. This included reference to the Global Exchange survey mentioned below.
57. "Afghan Portraits of Grief: The Civilian/Innocent Victims of US Bombing in Afghanistan", San Francisco: Global Exchange 3 (Sept. 2002). This short (16-page) Report was based on a survey conducted by a 5-person team between March and June 2002. It emphasizes that "it was impossible for our survey to be exhaustive and comprehensive", and that the figure of 824 "represents only a portion of civilian casualties" (at 3 and 6). It called on the US Government to establish an Afghan Victims Fund. Report available at: http://www.globalexchange.org.
58. "Afghan Portraits of Grief: The Civilian/Innocent Victims of US Bombing in Afghanistan", San Francisco: Global Exchange 3 (Sept. 2002). This short (16-page) Report was based on a survey conducted by a 5-person team between March and June 2002. It emphasizes that "it was impossible for our survey to be exhaustive and comprehensive", and that the figure of 824 "represents only a portion of civilian casualties" (at 3 and 6). It called on the US Government to establish an Afghan Victims Fund. Report available at: http://www.globalexchange.org.
59. J.M. Meyer, "Tearing Down the Façade: A Critical Look at the Current Law on Targeting the Will of the Enemy and Air Force Doctrine", 51 Air Force L. Rev. 166, 181 (2001).
60. W.M. Arkin, "Fear of Civilian Deaths May Have Undermined Effort", Los Angeles Times, 16 Jan. 2002, at A12: http://www.latimes.com/news/nationw'orld/world/la-011602milmemo.story.
61. On those who fled from the intense fighting and bombing in Afghanistan in Oct.-Nov. 2001, see the discussion of humanitarian relief and refugee issues, below.
62. In the year after the NATO bombing campaign over Kosovo ended in June 1999, at least 50 people in Kosovo were killed and over 100 injured by unexploded bomblets. Information can be found on the UN Mine Action website: http://www.mineaction.org.
63. R. Norton-Taylor, "Afghanistan Littered with 14,000 Unexploded Bomblets, Says UN", The Guardian, 23 Mar. 2002, at 18.
64. US Department of State, "Fact Sheet: U.S. Humanitarian Demining Assistance to Afghanistan", Washington DC, 30 July 2002, available at: http://www.state.gov.
65. B. Gellman & T.E. Ricks, "U.S. Concludes Bin Laden Escaped at Tora Bora Fight", Washington Post, 17 Apr. 2002, at Al.
66. D. Rumsfeld interviewed by T. Russert on "Meet the Press", NBC TV, 2 Dec. 2001: http://www.defenselink.mil/news/Dec2001/briefings.html.
67. 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, Part II (i.e., Arts. 13-26). See also 1977 Protocol I, Arts. 69-71; and Protocol II, Art. 18. The issue of humanitarian relief is only touched on briefly in this essay as, while of critical importance in Afghanistan, only to a limited extent does it raise problems specific to counter-terrorist military operations.
68. Information from senior Pentagon source, Washington DC, 7 Mar. 2002.
69. Figures for humanitarian daily rations dropped in Afghanistan were given in many Pentagon news briefings, including those of 8 and 31 Oct. 2001. See http://www.defenselink.mil/news/0ct2001/brieflngs.html
70. M. Robinson, UN High Commissioner for Refugees, on Irish Radio on 12 Oct. 2001, and on BBC-1 TV "Breakfast with Frost" programme, 14 Oct.
71. On the delivery of humanitarian aid after the collapse of the Taliban regime, see e.g., the briefing by General T. Franks at Tampa, Florida, on 18 Jan. 2002: http://www.defenselink.mil/news/Jan2002/briefIngs.html.
72. Figures for up to 1 January 2002 from UNHCR, Refugees by Numbers (2002), available at UNHCR website, http://www.unhcr.ch.
73. See e.g. T. Amirani's documentary film, "The Dispossessed", made in Nov.-Dec. 2001, about the Makaki Camp in Nimruz Province near the Afghan-Iranian border. The camp was initially under Taliban, and then Northern Alliance, control.
74. Reports from UNHCR border monitors, summarized in a press briefing by a UNHCR spokesman in Geneva, 25 Jan. 2002; and Afghanistan OCHA Situation Report No. 37, 29 Jan. 2002, both on the UN Reliefweb site: http://www.reliefweb.int/w7rwb.nsf. At that time there were also movements of ethnic Pashtun from Afghanistan to Pakistan.
75. Reports from UNHCR border monitors, summarized in a press briefing by a UNHCR spokesman in Geneva, 25 Jan. 2002; and Afghanistan OCHA Situation Report No. 37, 29 Jan. 2002, both on the UN Reliefweb site: http://www.reliefweb.int/w7rwb.nsf. At that time there were also movements of ethnic Pashtun from Afghanistan to Pakistan.
76. DPA Report of 12 Dec. 2002.
77. UNHCR Report of 3 Sept. 2002 and press briefing of 12 Dec. 2002, available at the UNHCR website.
78. See e.g. J. Steele, "Going Home to Hunger and Death: Aid Agencies Fear for Families Persuaded to Leave Refugee Camps", The Guardian, London, 4 Apr. 2002, at 17.
79. Much valuable evidence about the outbreak and course of the prison revolt at Qala-e Jhangi Fort has emerged, including particularly video records. See e.g. C. Gall, "Video Vividly Captures Prelude to Fortress Revolt", New York Times, 16 July 2002.
80. On the containers, see C. Gall, report from Sebarghan, "Long Journey to Prison Ends in Taliban Deaths: Many Suffocated in Sealed Ship Containers", International Herald Tribune, 11 Dec. 2001, at 4; B. Dehghanpisheh, J. Barry & R. Gutman, "The Death Convoy of Afghanistan", Newsweek (New York), 26 Aug. 2002, at 16-25; and the television documentary Afghan Massacre shown in the UK on Channel Five, 11 Nov. 2002. On the prisoners generally see R. Carroll, report from Kabul, "Afghan Jailers Beat Confessions From Men", The Guardian, London, 28 Dec. 2001, at 13.
81. On the containers, see C. Gall, report from Sebarghan, "Long Journey to Prison Ends in Taliban Deaths: Many Suffocated in Sealed Ship Containers", International Herald Tribune, 11 Dec. 2001, at 4; B. Dehghanpisheh, J. Barry & R. Gutman, "The Death Convoy of Afghanistan", Newsweek (New York), 26 Aug. 2002, at 16-25; and the television documentary Afghan Massacre shown in the UK on Channel Five, 11 Nov. 2002. On the prisoners generally see R. Carroll, report from Kabul, "Afghan Jailers Beat Confessions From Men", The Guardian, London, 28 Dec. 2001, at 13.
82. On the containers, see C. Gall, report from Sebarghan, "Long Journey to Prison Ends in Taliban Deaths: Many Suffocated in Sealed Ship Containers", International Herald Tribune, 11 Dec. 2001, at 4; B. Dehghanpisheh, J. Barry & R. Gutman, "The Death Convoy of Afghanistan", Newsweek (New York), 26 Aug. 2002, at 16-25; and the television documentary Afghan Massacre shown in the UK on Channel Five, 11 Nov. 2002. On the prisoners generally see R. Carroll, report from Kabul, "Afghan Jailers Beat Confessions From Men", The Guardian, London, 28 Dec. 2001, at 13.
83. D. Filkins, "3,000 Forgotten Taliban, Dirty and Dying", International Herald Tribune, London, 15 March 2002, at 1.
84. Rumsfeld, Press Briefing with General Pace, 30 Nov. 2001, http://www.defenselink.mil/news/Nov2001/briefings.html. Cf. an earlier statement of British Prime Minister T. Blair, who when asked on 13 Nov., also in general terms, "What sanctions do we have over the Northern Alliance?", replied "None". UK 10 Downing Street website: http://www.pm.gov.uk.
85. Rumsfeld, Press Briefing with General Pace, 30 Nov. 2001, http://www.defenselink.mil/news/Nov2001/briefings.html. Cf. an earlier statement of British Prime Minister T. Blair, who when asked on 13 Nov., also in general terms, "What sanctions do we have over the Northern Alliance?", replied "None". UK 10 Downing Street website: http://www.pm.gov.uk.
86. International and Operations Law Division - HQ USAF/JAI, Summary of Legal Issues Relevant to Terrorism Incidents of 11 Sept. 01, Pentagon, Washington DC, 21 Sept. 2001 [unpublished], at 5-6.
87. Commentary, Geneva Convention III 48 (J. Pictet ed., ICRC, 1960); H.S. Levie, Prisoners of War in International Armed Conflict, 59 Int'l L. Stud. 36-38 (US Naval War College, 1978).
88. Commentary, Geneva Convention III 48 (J. Pictet ed., ICRC, 1960); H.S. Levie, Prisoners of War in International Armed Conflict, 59 Int'l L. Stud. 36-38 (US Naval War College, 1978).
89. 1949 Geneva Convention III, Art. 17. See also Art. 4(A)(4), quoted above, which indicates that civilian contracted personnel (who played a significant part in the US operations in Afghanistan in 2001-2) would appear to qualify for PoW status provided that they have formal authorization. There is not a requirement that they wear uniform.
90. 1949 Geneva Convention III, Arts. 99-104. The separate subject of sanctions in respect of offences against prison camp discipline is covered in Arts. 89-98. As regards judicial proceedings against detainees who do not have PoW status, see below.
91. For a useful discussion see Y. Naqvi, "Doubtful Prisoner-of-war Status", 84 Int'l Rev. Red Cross 571-94 (No. 847, Sept. 2002).
92. 317 U.S. 1, at. 4, 5, 14, 16 etc.
93. The classic article on the subject is R.R. Baxter, "So-called 'Unprivileged Belligerency': Spies, Guerrillas and Saboteurs", 28 Brit. Y.B. Int'l L. 323, 332-45 (1951). His key conclusion is that this large category of hostile conduct is not per se violative of any positive prohibition of international law, but it does expose those engaging in it to trial and punishment by the enemy, for example under the enemy's own laws and regulations. In the years since he wrote this, many terrorist acts have been prohibited in international law, so the category is not necessarily appropriate for those suspected of involvement in terrorism.
94. 1949 Geneva Convention IV, Art. 4, first para. For a strong assertion that enemy combatants, if denied PoW status, must be considered as civilians, see H.-P. Gasser, "'Acts of Terror', 'Terrorism' and International Humanitarian Law", 84 Int'l Rev. Red Cross 568 (No. 847, Sept. 2002). He emphasizes that "civilian detainees suspected of having committed a serious crime can and must be put on trial".
95. Commentary, Geneva Convention IV 51 (J.S. Pictet ed., ICRC, 1958).
96. One of the few US publications to note the potential applicability and value of Art. 75 was L.A. Casey, D. Rivkin & D.R. Bartram, Detention and Treatment of Combatants in the War on Terrorism (Federalist Society for Law & Public Policy Studies, Washington DC, 2002). It was published in early 2002, before the White House announcement of 7 Feb. The text can also be found at: http://www.fed-soc.org/.
97. Rumsfeld, News Briefing, 11 Jan. 2002: http://www.defenselink.mil/news/Jan2002/briefings.html.
98. See e.g. S. Erlanger, "Europeans Take Aim at U.S. on Detainees", International Herald Tribune, London, 24 Jan. 2002, at 1 and 4.
99. See T. Shanker & K.Q. Seelye, "Behind-the-Scenes Clash Led Bush to Reverse Himself on Applying Geneva Conventions", New York Times, 22 Feb. 2002. Available at: http://www.nytimes.com.
100. Rumsfeld, News Briefing, 22 Jan. 2002: http://www.defenselink.mil/news/Jan2002/briefings.html.
101. White House, Office of the Press Secretary, "Fact Sheet: Status of Detainees at Guantanamo", 7 Feb. 2002, at 1.
102. Statement by the White House Press Secretary, Mr Ari Fleischer, 7 Feb. 2002, at 1-2.
103. "Bush Decision on Detainees Fails to Satisfy Red Cross", International Herald Tribune, London, 9-10 Feb. 2002. See also ICRC, Communication to the Press No. 02/11 of 9 Feb. 2002, available at: www.icrc.org.
104. "Bush Decision on Detainees Fails to Satisfy Red Cross", International Herald Tribune, London, 9-10 Feb. 2002. See also ICRC, Communication to the Press No. 02/11 of 9 Feb. 2002, available at: www.icrc.org.
105. ICRC, "Press Releases and Communications to the Press by the ICRC: Former Yugoslavia, Federal Republic of Yugoslavia, Republic of Croatia, Republic of Bosnia and Herzegovina, 2 July 1991 - 20 March 1998", bound collection of photocopied texts, (Geneva, 1998).
106. See e.g. the article by the Executive Director of Human Rights Watch, K. Roth, "Bush Policy Endangers American and Allied Troops", International Herald Tribune, Paris, 5 March 2002, and various other statements on the Human Rights Watch website: http://www.hrw.org. Also Amnesty International's long and detailed "Memorandum to US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay", London, 15 Apr. 2002, available at the Amnesty International website http://www.amnesty.org.uk.
107. See e.g. the article by the Executive Director of Human Rights Watch, K. Roth, "Bush Policy Endangers American and Allied Troops", International Herald Tribune, Paris, 5 March 2002, and various other statements on the Human Rights Watch website: http://www.hrw.org. Also Amnesty International's long and detailed "Memorandum to US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay", London, 15 Apr. 2002, available at the Amnesty International website http://www.amnesty.org.uk.
108. 1949 Geneva Convention III, Art. 17. This rule does not mean that a PoW cannot be asked other questions, nor does it prohibit the PoW from providing other information. In March 2002 J. Kellenberger, President of ICRC, pointed out that there was nothing in humanitarian law to stop a prisoner being questioned, but that he could not be forced to answer. "If he does not want to answer, that is his right. Under any system, you cannot do anything to people to make them speak. It is a non-issue". Reuter report from Geneva, "ICRC Rejects Talk of Geneva Conventions Review", 21 March 2002.
109. In a thorough and perceptive account of Camp Delta at Guantanamo datelined 10 Oct. 2002 J. Lelyveld suggests that it is a holding camp for detainees most of whom are not likely to be released or tried soon, and many of whom may be relatively minor figures who were in the wrong place at the wrong time. J. Lelyveld, "In Guantanamo", New York Review of Books, 7 Nov. 2002, at 62-68.
110. The normal appeal procedure for US armed forces is through the appellate court of each service, then through the US Court of Appeals for the Armed Forces, and then on to the Supreme Court.
111. President F.D. Roosevelt, Proclamation No. 2561 of 2 July 1942, "Denying Certain Enemies Access to the Courts of the United States", 7 Federal Register, issue of 7 July 1942, at 5,103. On this and other cases of US-established military commissions, see the Congressional Research Service paper, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, updated 11 Dec. 2001, Congressional Research Service Order Code RL31191, Washington DC, 2001, at 18-26 and 46-48.
112. President G.W. Bush, Military Order of 13 Nov. 2001, "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism", Sees. 1(e), 1(f), 3, and 4(b) and (c). 66 Federal Register, Washington DC, No. 222, 16 Nov. 2001, at 57, 833. Text available at the Federal Register website: http://www.access.gpo.gov/su-docs/aces/aces140.html.
113. For a useful exploration of these and other possibilities, see D. Scheffer, Options for Prosecuting International Terrorists (United States Institute of Peace Special Report, Washington DC, 14 Nov. 2001).
114. Statements by President's Counsel, A. Gonzalez, in an address to an American Bar Association meeting, 30 Nov. 2001, as cited in Am. Soc'y Int'l L. Newsletter, Nov.-Dec. 2001, at 12.
115. Department of Defense, Military Commission Order No. 1, "Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism", 21 March 2002. Text available at: http://www.defenselink.mil/news/Mar2002/releases.html. For a response claiming that these procedures, if not per se violative of international law, are highly problematic, see J.J. Paust, "Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure", 23 Mich. J. Int'l L. 677-94 (2002).
116. Department of Defense, Military Commission Order No. 1, "Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism", 21 March 2002. Text available at: http://www.defenselink.mil/news/Mar2002/releases.html. For a response claiming that these procedures, if not per se violative of international law, are highly problematic, see J.J. Paust, "Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure", 23 Mich. J. Int'l L. 677-94 (2002).
117. 1977 Protocol I, Art. 75(4)(j). The Pentagon's detailed regulations provide for a post-trial Review Panel to which the defence can make written submissions, not for a full-blown appeal procedure. A further reservation about the regulations concerns the role of the defence counsel, who would be excluded with the accused from closed sessions, at which only an "assigned" defence counsel would be present who would be forbidden to speak with the co-counsel or the accused.
118. Ambassador Prosper speaking in London on 20 Sep. 2002. O. Boycott, "Guantanamo Britons Still a Threat, says US", The Guardian, 21 Sep. 2002, at 23.
119. Address by P.-R. Prosper, US Ambassador for War Crimes Issues, at the Royal Institute of International Affairs, London, 20 Feb. 2002.
120. Reports of Ambassador Prosper's views by K. Sengupta & A. Buncombe in The Independent, 22 Feb. 2002, at 1 and 2.
121. Embassy of Switzerland, Washington DC, communication to US Department of State and enclosed Information Note, 13 Sept. 2002.