Abstract
An examination of the growing literature on the topic of the geography of armed conflict suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it”, little agreement exists even on whether there is a specific, definable geography of armed conflict at all. To help move beyond this impasse, this article explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion—and thus to help advance the development of the law of armed conflict and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law versus policy; authority versus obligation; territory versus threat; and submission of the collective enemy versus elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant—if not determinative—effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they impact the current discourse is critical to any effective conversation, whether in the academic or policy arenas.
Laurie R. Blank is Director of the International Humanitarian Law Clinic, Emory University School of Law.
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Notes
- 1.
- 2.
The White House 2013.
- 3.
ICRC 2004. The law of armed conflict is codified primarily in the four Geneva Conventions of 12 August 1949 and their Additional Protocols. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (hereinafter: GCI); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (hereinafter: GCII); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (hereinafter: GCIII); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (hereinafter: GCIV); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (hereinafter: API); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978) (hereinafter: APII).
- 4.
See Uhler et al. 1958 (“The substitution of this much more general expression for the word ‘war’ was deliberate. It is possible to argue almost endlessly about the legal definition of ‘war’ […] The expression ‘armed conflict’ makes such arguments less easy”.).
- 5.
The closest term in the Department of Defense Dictionary of Military and Associated Terms is “theater of war,” which is “[d]efined by the President, Secretary of Defense, or the geographic combatant commander as the area of air, land, and water that is, or may become, directly involved in the conduct of major operations and campaigns involving combat.” See Joint Chiefs of Staff, Joint Publication 1-02: Department of Defense Dictionary of Military and Associated Terms (15 December 2013), available at: www.dtic.mil/doctrine/new_pubs/jp1_02.pdf, p. 292.
- 6.
Oppenheim 1952, paras 70–71.
- 7.
Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague Convention V), opened for signature 18 October 1907, 36 Stat. 2310 (entered into force 26 January 1910), Chap. 1 (defining boundaries and responsibilities of neutral powers).
- 8.
Lubell and Derejko 2013.
- 9.
The ICRC takes the latter approach and does not accept the notion of a transnational conflict, but rather looks at the level of hostilities in a particular state to determine whether the situation in that area meets the threshold for an armed conflict. If adopted, this analytical method obviates the need to determine the geographical parameters of a conflict between a state and one or more transnational armed groups not located in any particular area. Instead, this method allows its proponents to conclude that certain states are experiencing armed conflict and others are not.
- 10.
For a comprehensive discussion of LOAC and the problem of defining the battlefield, see Blank 2010.
- 11.
The view of the Bush Administration was: “Our [W]ar on [T]error will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan.” See Roth 2004 (quoting President Bush’s statement made on 29 September 2001).
- 12.
Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), 698.
- 13.
Padilla v. Hanft, 547 U.S. 1062 (2006) (Ginsburg, J., dissenting), 1064.
- 14.
Boumediene v. Bush, 553 U.S. 723 (2008), 770.
- 15.
Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), 88.
- 16.
Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009), 229 (emphasis added) (holding that individuals captured in Afghanistan and detained at the Bagram Theater Internment Facility are not entitled to habeas corpus and specifically distinguishing between detained battlefield enemy belligerents and individuals apprehended outside the zone of combat operations).
- 17.
See Blank 2011.
- 18.
Gregory 2011, p. 241.
- 19.
See, e.g., Dinstein 2004, p. 17 (explaining that LOAC “takes a middle road, allowing belligerent States much leeway (in keeping with the demands of military necessity) and yet circumscribing their freedom of action (in the name of humanitarianism)”).
- 20.
US Department of the Army Field Manual 1956, pp. 3–4.
- 21.
It is important to note, nonetheless, that the principle of military necessity contains its own essential constraints because it prohibits any acts that are forbidden by LOAC.
- 22.
See UK Ministry of Defence Joint Service Manual 2004, paras 2.4–2.4.3. This principle of humanity is the central focus of the four 1949 Geneva Conventions and is implemented through numerous LOAC treaty provisions. These include the prohibition against the use of any type of coercion against a prisoner of war or civilian internee; the obligation to search for and collect the wounded and sick and ensure that priority of medical care is based solely on medical considerations; the obligation to search for and collect the shipwrecked at sea; the obligation to provide notice of capture of enemy personnel to the enemy state through a neutral intermediary; the obligation to facilitate the efforts of neutral relief agencies; the extensive immunities from attack afforded to places engaged in medical functions; and even the obligation to maintain and record the location of interment of the enemy dead.
- 23.
See Corn 2009a, pp. 1352–1353 (“[A]rmed conflict is defined by the authority to use deadly force as a measure of first resort”).
- 24.
See Article 4 GCIII (describing various prisoner of war categories); Articles 42, 78 GCIV (permitting internment).
- 25.
The principle of distinction mandates that all parties to a conflict distinguish between those who are fighting and those who are not and that parties only target those who are fighting. In addition, fighters, including soldiers, must distinguish themselves from innocent civilians. See Article 48 API. The principle of proportionality states that parties must refrain from attacks where the expected civilian casualties will be excessive in relation to the anticipated military advantage. See Article 51(5)(b) API.
- 26.
See generally GCIII and GCIV with respect to detention of prisoners of war and enemy civilians during conflict.
- 27.
Corn 2009b, p. 4 (“the authority of the LOAC would be asserted to provide the legal basis for the execution of military operations against al Qaeda—an entity considered to be engaged in an armed conflict with the United States; however, unlike their Taliban counterparts who could at least in theory claim the protections of the LOAC (because they were captured in the context of what the United States ultimately conceded was an inter-state armed conflict), al Qaeda captive were afforded no such claim to LOAC protections because the conflict they engaged in defied classification under either Common Article 2 or 3”).
- 28.
See Koh, Annual Meeting of the American Society of International Law Speech (25 March 2010), available at: http://www.state.gov/s/l/releases/remarks/139119.htm; Brennan, Woodrow Wilson International Center for Scholars Speech (30 April 2012), available at: http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy; Holder, Remarks at Northwestern University School of Law Speech (5 March 2012), available at: http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html.
- 29.
Alston 2010.
- 30.
- 31.
ICTY, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (IT-94-I-AR72), 2 October 1995, para 68.
- 32.
Ibid, para 69.
- 33.
Ibid.
- 34.
ICTY, Prosecutor v. Zejnil Delalić et al., Judgment Trial Chamber (IT-96-21-T), 16 November 1998, para 185.
- 35.
Common Article 3 of the 1949 Geneva Conventions.
- 36.
O’Connell 2009, p. 858.
- 37.
US Department of Justice, Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department Defense (22 January 2002), available at: http://www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf.
- 38.
Ibid.
- 39.
Corn 2013, p. 82.
- 40.
See, e.g., Herndon et al. 2004, p. 26 (analyzing effects-based operations, “[a] process for obtaining a desired strategic outcome or ‘effect’ on the enemy through the synergistic, multiplicative and cumulative application of the full range of military and nonmilitary capabilities” (citation and internal quotation marks omitted)).
- 41.
See Lubell and Derejko 2013, p. 10 (“the extension of IHL beyond the immediate geographical and temporal spheres of hostilities is necessary to prevent attempts by the Parties to an armed conflict to evade the reach of IHL by relocating individuals and directing operations away from the immediate sphere of hostilities”). See also Rise of the Drones II: Examining the Legality of Unmanned Targeting, Hearing Before the Subcomm. on National Security and Foreign Affairs of the H. Comm. on Oversight and Government Reform, 111th Cong, 2nd Sess. 4–5 (2010) (statement of Lewis, Professor, Ohio Northern University Pettit College of Law) (noting that “the proposed geographic restrictions allow the individual to obtain the same immunity by crossing an international border and avoiding law enforcement while remaining active in an organization that targets civilians”); Discussion of the Bin Laden raid, Sect. 11.5 infra.
- 42.
Roth 2004.
- 43.
See Blank 2012 (discussing the risks of conflating armed conflict with self-defense as justifications for the use of force against non-state actors); Corn 2013, p. 85 (“Nonetheless, the concept of armed conflict of international scope conducted against a loosely organized non–State opponent—a typology of armed conflict resulting in the increasingly common characterization of ‘transnational armed conflict,’—certainly creates the perception, if not the reality, of authority overreach”).
- 44.
See Blank 2012.
- 45.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996) ICJ Rep 226, para 246; ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), (1986) ICJ Rep 14; Eritrea-Ethiopia Claims Commission, Partial Award (Jus Ad Bellum), Ethiopia’s Claims 1–8 (The Federal Democratic Republic of Ethiopia and the State of Eritrea), 19 December 2005, available at: http://www.pca-cpa.org/upload/files/FINAL%20ET%20JAB.pdf. For an extensive treatment of jus ad bellum and the use of force in self-defense, see Dinstein 2005.
- 46.
See Guiora 2012 (“An imminent threat in the terrorism paradigm is just that—a clear and present danger—that unless mitigated endangers innocent civilians. It is not an amorphous threat, distant in time; quite the opposite for it indicates that unless specific measures are taken with respect to the person posing the threat harm will befall those not in a position to protect themselves”).
- 47.
Kretzmer 2005, p. 173. See also Schmitt 2008 (“If law-enforcement measures (or other measures short of self-defense) will assuredly foil a terrorist attack on their own, forceful measures in self-defense may not be taken. The issue is not whether law enforcement officials are likely to bring the terrorists to justice, but instead whether, with a reasonable degree of certainty, law enforcement actions alone will protect the target(s) of the terrorism. For instance, if members of a terrorist cell can confidently be arrested, that action must be taken in lieu of a military attack designed to kill its members”).
- 48.
US Department of the Army Field Manual 1956, at app. A-1.
- 49.
See, e.g., Sassòli and Olson 2008, p. 606 (“Combatants are part of the military potential of the enemy and it is therefore always lawful to attack them for the purpose of weakening that potential”).
- 50.
In an international armed conflict, all members of the military forces of a party to the conflict are legitimate targets of attack at all times; in a non-international armed conflict, all fighters in an organized armed group that is a party to the conflict are similarly targetable at all times. See Gurulé and Corn 2011, pp. 70–76 (discussing the rules governing targeting of enemy forces in international and non-international armed conflict and noting that (1) “a member of an enemy force […] is presumed hostile and therefore presumptively subject to attack” in international armed conflict, and (2) “[s]ubjecting members of organized belligerent groups to status based targeting pursuant to the LOAC as opposed to civilians who periodically lose their protection from attack seems both logical and consistent with the practice of states engaged in non-international armed conflicts”); Melzer 2008, p. 995 (stating that members of organized armed groups are targetable based on their status in non-international armed conflict).
- 51.
See, e.g., Goodman 2013.
- 52.
Although identifying who is a member of a transnational terrorist group for the purposes of targeting analysis is extraordinarily difficult and fraught with uncertainty, some cases, such as that of Bin Laden, are straightforward.
- 53.
Press Briefing by Press Secretary Jay Carney (4 May 2011), available at: http://www.whitehouse.gov/the-press-office/2011/05/04/press-briefing-press-secretary-jay-carney-542011.
- 54.
See O’Connell, The Death of Bin Laden as a Turning Point, Opinio Juris blog entry (3 May 2011), available at: http://opiniojuris.org/2011/05/03/the-death-of-bin-laden-as-a-turning-point/; O’Connell, The Bin Laden Aftermath: Abbottabad and International Law, Foreign Policy (4 May 2011), available at: http://afpak.foreignpolicy.com/posts/2011/05/04/the_bin_laden_aftermath_abbottabad_and_international_law (“On May 2, no fighting was going on in Pakistan that would rise to the level of ‘armed conflict’ as defined under international law”).
- 55.
US Department of the Army Field Manual 1956, Article 3 (defining the principle of military necessity).
- 56.
Lubell and Derejko 2013, p. 16.
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Blank, L.R. (2015). Debates and Dichotomies: Exploring the Presumptions Underlying Contentions About the Geography of Armed Conflict. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law 2013. Yearbook of International Humanitarian Law, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-038-1_11
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