Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror
Volume 81, No. 3, Fall 2008
By Geoffrey S. Corn & Eric Talbot Jensen [PDF]

One of the most difficult legal questions generated by the United States’ proclaimed Global War on Terror is how to determine when, if at all, the laws of war apply to military operations directed against nonstate actors. This question has produced a multitude of answers from scholars, government officials, military legal experts, and even the Supreme Court of the United States. The varied responses to this question are almost certainly attributable to the reality that the criterion for determining when the law of war applies to any given military operation is based on an assumption that armed conflicts will occur either between the armed forces of states or between state armed forces and internal dissident groups. Prior to the terror attacks of September 11, 2001 and the military response they triggered, the application of this body of law to military operations directed against nonstate entities outside the territory of the responding state had not been seriously contemplated. Both proponents and opponents of application of the laws for war to this struggle relied on this law-triggering paradigm, derived from articles 2 and 3 of the four Geneva Conventions of 1949. This merely revealed that characterizing the “war on terror” according to this state-centric paradigm was like putting a proverbial square peg into a round hole. While from a lay perspective it may seem that resolving such a question is like dancing on the head of a pin, the resolution has profound consequences for virtually every person involved in or impacted by this “war.”

Ironically, this state-centric law-triggering paradigm emerged as one of the most significant post-World War II (“WWII”) advances in the laws of war. From 1949 through 2001, this paradigm evolved into almost an article of faith among the international legal and military community. Accordingly, military operations were subject to this body of international legal regulation only when the situation satisfied certain law-triggering “criteria.” This paradigm became so pervasive that at least one major military power felt compelled to establish military policy requiring compliance with the “principles” of this law during military operations that did not satisfy this triggering paradigm, a situation that became increasingly common following the end of the Cold War.

The utility of this paradigm was, however, truly thrown into disarray as the result of the events of September 11, 2001. President Bush characterized the terror strike against the United States as an “armed conflict,” and he and the Congress of the United States almost immediately invoked the war powers of the nation to respond to the threat presented by al Qaeda, a nonstate entity operating throughout the world. This characterization was embraced not only by the United Nations Security Council, but also by the North Atlantic Treaty Organization and others. Since that time, the executive branch has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Unfortunately, responding to such questions by application of the traditional law-triggering paradigm was like fitting a square peg into a round hole. Because of this disarray, the time has come to develop a new approach to determining application of the laws of war that reconciles this disparity between authority and obligation related to the conduct of combat military operations. This will require adopting a new triggering “criteria.” This trigger must reflect not only the underlying purpose of the laws of war, but also the pragmatic realities of contemporary military operations.

As nations prepare to use military force, national leaders dictate rules on how the military may apply force in any impending operation. These rules, broadly categorized as rules of engagement (“ROE”), fall into two general categories: conduct-based ROE that allow military personnel to respond with force based on an individual’s actions, and status-based ROE that allow military personnel to use deadly force based only on an individual’s membership in a designated organization, regardless of the individuals actions. It is the thesis of this Article that a nation’s adoption of status-based ROE for its military in a particular military operation should constitute the trigger requiring that nation and its military to apply the laws of war to that operation.

This Article will initially discuss the historical underlying purpose of regulating conflict, and why that purpose supports an expansive application of the laws of war. It will then explain why the current law-triggering test is insufficient to respond to the realities of contemporary transnational conflict between states and nonstate organizations. The Article will then provide a comprehensive discussion of the concept of rules of engagement, including how they evolved to complement application of the laws of war. More importantly, the Article will explain how, in practice, rules of engagement fall into two broad categories: status or conduct rules. The distinction between these two categories of ROE will, as this Article demonstrates, offer a new analytical criterion for triggering the law, relying on a nation’s invocation of status-based ROE. The Article will accordingly analyze how focusing on the rules of engagement related to military operations offers perhaps the best de facto indicator of the line between conflict and nonconflict operations, and therefore is the best triggering criterion for legally mandated application of the fundamental principles of the laws of war. The Article will conclude with a proposal for adoption of this new law-triggering paradigm, and a discussion of some pragmatic policy concerns that will need to be carefully considered in any such adoption.

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