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Published online by Cambridge University Press: 17 February 2009
Law without facts makes a dull subject, and it is one of the peculiarities of international humanitarian law (IHL) that many of the interesting facts are classified or unavailable to those outside the military. This partially explains why IHL until recently has been the redoubt of military lawyers and the International Committee of the Red Cross. That situation is changing, for many reasons.
Popular interest in IHL is growing due to concern with responses to terrorism, interventionism (humanitarian and otherwise) and international justice. Civil society organisations have successfully campaigned for both new standards, such as the Landmines Convention, as well as new mechanisms of enforcement, such as the ad hoc international criminal tribunals and the International Criminal Court. At the same time, technology and globalisation have facilitated both real-time battlefront reporting and post-battle analysis by civilians.
5. 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).
6. Schmitt, M.N., ‘The conduct of hostilities during operation Iraqi Freedom: an international humanitarian law assessment’, in 6 YIHL (2003) p. 73CrossRefGoogle Scholar.
7. See, e.g., Dunnigan, J., ‘Lawfare gives terrorists an edge’, in StrategyPage, 27 02 2005Google Scholar <http://www.strategypage.com/dls/articles/20052270.asp>; cf., Carter, P., ‘Legal combat: are enemies waging war in our courts?’, in Slate, 4 04 2005Google Scholar <http://slate.msn.com/id/2116169/>.
8. Human Rights Watch did analyse Iraqi violations of IHL in Off Target, supra n. 5, pp. 66–78.
9. The Associated Press conducted a body count between March and April 2003 surveying about half of Iraq's hospitals and recording deaths in cases where a death certificate was issued, arriving at a figure of 3,240 confirmed deaths, the actual number likely to be significantly higher. See Bedway, B., ‘Why AP counted civilian deaths in Iraq’, in Editor & Publisher, 24 06 2003Google Scholar <http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1920081>. Another web site tabulated 7,350 civilian deaths up to 1 May 2003, using mainly press reports and including some screens for double-counting. See <http://www.iraqbodycount.net/database/>.
10. In the 1999 Kosovo bombing campaign, which lasted 78 days, PGMs accounted for approximately a third of the 26,000 weapons used, with about 500 civilian casualties resulting. Human Rights Watch Report, ‘Civilian deaths in the NATO air campaign’ (2000) <http://www.hrw.org/reports/2000/nato/>, and Off Target, supra n. 5, p. 16. We do not know how many deaths are attributable to the air war in Iraq, where close to two-thirds of the 29,199 bombs dropped by the United States and the United Kingdom over 22 days were PGMs, but in our estimation it was at least in the hundreds and possibly more — though the ground war produced the bulk of casualties. Without any comprehensive accounting of civilian casualties it is impossible to analyse the factors that contributed to actual deaths.
11. See Arts. 43 and 52(2) Additional Protocol I of 1977.
12. Schmitt, supra n. 6, p. 79 at n. 37 and sources therein.
13. Human Rights Watch telephone interview with senior CENTCOM official, 27 September 2003.
14. See Schmitt, supra n. 6, p. 95.
15. See, e.g., the profile of Barzan Ibrahim Al-Tikriti <http://www.globalsecurity.org/military/world/iraq/barzan.htm>.
16. See, e.g., the profile of Watban Hussein Al-Tikriti <http://www.globalsecurity.org/military/world/iraq/watban.htm>.
17. See Off Target, supra n. 5, at nn. 80 and 82, and Schmitt, supra n. 6, p. 85 at n. 67 (citing ‘DoD news briefing — ASD PA Clarke and Maj. Gen. McChrystal’, 8 April 2003). The relevant part of the briefing is McChrystal's statement: ‘What we have for battle damage assessment right now is essentially a hole in the ground, a site of destruction where we wanted it to be, where we believed high-value targets were, where intelligence led us to believe that. We do not have hard battle damage assessment on exactly what individual or individuals were on-site.’ <http://www.defenselink.mil/transcripts/2003/tr20030408-0082.html>.
18. 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. 1678Google Scholar.
19. Schmitt, M., ‘“Direct participation in hostilities” and 21st century armed conflict’, in Fischer, H. et al., eds., Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck (Berlin, Berliner Wissenschafts-Verlag 2004) pp. 505–529Google Scholar <http://www.michaelschmitt.org/images/Directparticipationpageproofs.pdf>.
20. An example suggested by his essay is the person half a world away, who inputs data for programming missile coordinates or computer network attacks. Functionally, this might meet his test of direct participation in hostilities. The problem of remoteness from a battle is even more acute in the context of a so-called ‘global war on terror’. There may not be actual ‘armed conflict’ in many places where terrorist cells might be found. Schmitt posits that little IHL (including the exception for civilians directly participating in hostilities) would apply. That would leave self-defence as the ad bellum justification for targeting members of terrorist organisations that perpetrate attacks such as those of 9/11. From this he concludes that the principle of military necessity allows attacking anyone who cannot be otherwise arrested if there is a reasonable belief that so doing is required to defeat either an ongoing or future terrorist attack. Ibid., p. 524. To illustrate this point, Schmitt uses an example where the evidence of participation in past attacks and likely participation in future attacks was fairly compelling, the November 2002 bombing in Yemen of Qaed Salim Sinan al-Harethi, who was implicated in the attack on the USS Cole. But it is also possible to imagine much more borderline scenarios where this rationale (which raises myriad questions as to what constitutes a ‘reasonable belief’ that any given attack is ‘necessary’ to defeat a ‘potential’ — but how likely? — future terrorist attack — but related to prior attacks, or prior attackers, and how proximately?…etc.) could be abused to undermine the entire structure of peacetime law enforcement, not to mention human rights law, quite profoundly.
21. Ibid., p. 510.
22. Ibid.
23. A significant number of governments, though not the United States, joined Additional Protocol I, similarly skeptical that denying POW status to insurgents for failing to wear uniforms would actually impel such irregulars to wear them. See Art. 44(3) Additional Protocol I.
24. Schmitt, supra n. 19, p. 509.
25. See Arts. 52(3) and 50(1) Additional Protocol I. The customary international law status of the latter rule on presumption of civilian status is fuzzy, given various understandings of France and the United Kingdom, and the rejection of the rule by the United States. The ICRC customary law study concludes from the mixed picture that ‘when there is a situation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious’. Henckaerts, J.-M. and Doswald-Beck, L., eds., Customary International Humanitarian Law, Vol. 1 (Cambridge, Cambridge University Press 2005) p. 24 (hereafter, CIHL)CrossRefGoogle Scholar. But where what is at issue is the question of direct participation in hostilities rather than a presumption of civilian status, there is little doubt that the rule is customary. Ibid., p. 20.
26. Art. 57(2)(a)(iii) Additional Protocol I articulates a rule of customary international law, providing that one precaution to spare civilians is to ‘refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. Art. 57(2)(b) reiterates this rule, requiring an attack be ‘cancelled or suspended’ if such an expectation may pertain.
27. See Art. 57(2)(a)(ii) and (iii) Additional Protocol I.
28. Off Target, supra n. 5, p. 24.
29. Ibid., p. 24 and n. 49.
30. See Schmitt, supra n. 6, p. 94 at nn. 107, 108 and 109.
31. Ibid., p. 94 at nn. 108, 111 and accompanying text.
32. Art. 52(3) Additional Protocol 1.
33. Off Target, supra n. 5, pp. 48–49.
34. Ibid., p. 48.
35. Al-Hilla alone suffered at least 551 deaths and injuries from cluster munitions. Ibid., p. 128.
36. Ibid., p. 58.
37. Ibid., p. 85.
38. Ibid., text accompanying n. 120.
39. Office of the US Under Secretary of Defense for Acquisition, Technology and Logistics, ‘Report to Congress: cluster munitions’ (2004); Office of the US Under Secretary of Defense for Acquisition, Technology, and Logistics, ‘Unexploded ordnance report’, no date, table 2–3, p. 5.
40. Off Target, supra n. 5, p. 83.
41. Ibid., p. 82.
42. Ibid., p. 56.
43. Schmitt, supra n. 6, p. 98 at n. 130 and accompanying text.
44. Off Target, supra n. 5, pp. 82–83 (citing Human Rights Watch interview with Major Jim Barren, Second Brigade, Third Infantry Division, U.S. Army, Baghdad, 23 May 2003; Taylor, R.A. et al. , ‘MLRS AFATDS and Communications’, in Field Artillery, 1 07 2003)Google Scholar.
45. Ibid., p. 114 (citing Human Rights Watch interview with Colonel David Perkins, commanding officer, Second Brigade, Third Infantry Division, US Army, Baghdad, 23 May 2003).
46. Ibid., p. 115 (citing Human Rights Watch interview with US Marine officer #2, Iraq, May 2003).
47. Art. 2(a)(iii) Additional Protocol I.
48. Human Rights Watch also argued that use of cluster munitions may violate two other provisions of IHL. First, according to Art. 51(5)(b) Additional Protocol I, strikes that ‘treat ‘separate and distinct’ military objects as one are also expressly prohibited’. Because cluster munitions are area effect weapons, the vast majority cannot be directed at specific soldiers or armoured vehicles, especially when used in populated areas. Off Target, supra n. 5, pp. 61, 98. Second, because of their high dud rates, older unreliable models ‘exemplify weapons that can be indiscriminate in effect’, which are prohibited under Art. 51(4)(c) of Additional Protocol I. Ibid., p. 115. All the provisions of IHL discussed in this section represent customary law.
49. Ibid.
