Problem II.D.1.

     In February 2007, the International Court of Justice reached its judgment in the case of Bosnia-Herzegovina v. Serbia (mentioned in the casebook at p. 621), finding that Serbia was not responsible for genocide committed by Bosnian Serb forces during the Bosnian civil war but was nonetheless responsible for failure to prevent genocide.  In its judgment (for full text click here), the Court discussed extensively the rules of state responsibility concerning attribution to a state of actions by non-state actors. After quoting the ILC Draft Articles (casebook, p. 998), it stated:

399. This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in [Nicaragua, where] the Court, as noted above, after having rejected the argument that the contras were to be equated with organs of the United States because they were “completely dependent” on it, added that the responsibility of the Respondent could still arise if it were proved that it had itself “directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State”; this led to the following significant conclusion:

“For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” (Ibid., p. 65.)

400. . . . First, in this context it is not necessary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of “complete dependence” on the respondent State; it has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.

401. . . . The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility.

402.  The . . . Applicant has further questioned the validity of applying, in the present case, the criterion adopted in the Military and Paramilitary Activities Judgment. It has drawn attention to the Judgment of the ICTY Appeals Chamber in the Tadić case. In that case the Chamber did not follow the jurisprudence of the Court in the Military and Paramilitary Activities case: it held that the appropriate criterion, applicable in its view both to the characterization of the armed conflict in Bosnia and Herzegovina as international, and to imputing the acts committed by Bosnian Serbs to the FRY under the law of State responsibility, was that of the “overall control” exercised over the Bosnian Serbs by the FRY. . . [T]he Appeals Chamber took the view that acts committed by Bosnian Serbs could give rise to international responsibility of the FRY on the basis of the overall control exercised by the FRY over the Republika Srpska and the VRS, without there being any need to prove that each operation during which acts were committed in breach of international law was carried out on the FRY’s instructions, or under its effective control.

403.  The Court . . . finds itself unable to subscribe to the Chamber’s view. First, the Court observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise of its jurisdiction. . . . . Insofar as the “overall control” test is employed to determine whether or not an armed conflict is international, which was the sole question which the Appeals Chamber was called upon to decide, it may well be that the test is applicable and suitable; the Court does not however think it appropriate to take a position on the point in the present case, as there is no need to resolve it for purposes of the present Judgment. On the other hand, the ICTY presented the “overall control” test as equally applicable under the law of State responsibility for the purpose of determining -- as the Court is required to do in the present case -- when a State is responsible for acts committed by paramilitary units, armed forces which are not among its official organs. In this context, the argument in favour of that test is unpersuasive. . . .

406. [T]he “overall control” test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State. Apart from these cases, a State’s responsibility can be incurred for acts committed by persons or groups of persons -- neither State organs nor to be equated with such organs -- only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above. This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.

Problem II.D.2.: U.S. Legal Positions on the “War on Terrorism” and Detention

     With the arrival of the Obama Administration, the phrases “war on terrorism” or “global war on terror” were removed from official governmental communications. The Administration also announced on its first day in office a review of all detention policy. At the same time, the Administration made clear its legal views in a March 2009 brief to a federal district court concerning the status of Guantanamo detainees. The brief, available in full here, stated:

     The United States can lawfully detain persons currently being held at Guantanamo Bay who were “part of,” or who provided “substantial support” to, al-Qaida or Taliban forces and “associated forces.” This authority is derived from the AUMF [Congress’ Authorization for the Use of Military Force, discussed on p. 1013 in the Hamdi case], which empowers the President to use all necessary and appropriate force to prosecute the war, in light of law-of-war principles . . . Longstanding law-of-war principles recognize that the capture and detention of enemy forces “are ‘important incident[s] of war.’” Hamdi, 542 U.S. at 518 The AUMF authorizes use of military force against those “nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . . .” By explicitly authorizing the use of military force against “nations, organizations, or persons” that were involved in any way in the September 11 attacks (or that harbored those who were), the statute indisputably reaches al-Qaida and the Taliban. . . .

     Under international law, nations lawfully can use military force in an armed conflict against irregular terrorist groups such as al-Qaida. The United Nations Charter, for example, recognizes the inherent right of states to use force in self defense in response to any “armed attack,” not just attacks that originate with states. United Nations Charter, art. 51. The day after the attacks, the United Nations Security Council adopted Resolution 1368, which affirmed the “inherent right of individual or collective self-defense in accordance with the Charter” and determined “to combat by all means threats to international peace and security caused by terrorist acts.” . . . .

     The United States has not historically limited the use of military force to conflicts with nation-states: [A] number of prior authorizations of force have been directed at non-state actors, such as slave traders, pirates, and Indian tribes. In addition, during the Mexican-American War, the Civil War, and the Spanish-American War, U.S. military forces engaged military opponents who had no formal connection to the state enemy. Presidents also have used force against non-state actors outside of authorized conflicts. . . .

     Thus, consistent with U.S. historical practice, and international law, the AUMF authorizes the use of necessary and appropriate military force against members of an opposing armed force, whether that armed force is the force of a state or the irregular forces of an armed group like al-Qaida. Because the use of force includes the power of detention, Hamdi, 542 U.S. at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” Ex parte Quirin, 317 U.S. at 38. . . . see also Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4. Accordingly, under the AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the principal organizations that fall within the AUMF’s authorization of force.

     [A]ny determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida . . . or taking positions with enemy forces. In each case, given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances. . . .

     Finally, the AUMF is not limited to persons captured on the battlefields of Afghanistan. Such a limitation “would contradict Congress’s clear intention, and unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.” Khalid, 355 F. Supp. 2d at 320 . . . Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. . . . .

     Petitioners have sought to restrict the United States’ authority to detain armed groups by urging that all such forces must be treated as civilians, and that, as a consequence, the United States can detain only those “directly participating in hostilities.”3 [The footnote states: “The “direct participation in hostilities” standard is taken from two additional protocols to the Geneva Conventions that the United States has not ratified [citing Protocol I, art. 51(3) . . . The United States recognizes the standard for targeting but its scope is unsettled.] . . . Law-of-war principles do not limit the United States’ detention authority to this limited category of individuals. A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians.

     [I]ndividuals who are part of private armed groups are not immune from military detention simply because they fall outside the scope of Article 4 of the Third Geneva Convention, which defines categories of persons entitled to prisoner–of-war status and treatment in an international armed conflict. Article 4 does not purport to define all detainable persons in armed conflict. Rather, it defines certain categories of persons entitled to prisoner-of-war treatment. Id., art. 4. . . . [O]ther principles of the law of war make clear that individuals falling outside Article 4 may be detainable in armed conflict. . . .

     For example, Common Article 3 of the Geneva Conventions provides standards for the treatment of, among others, those persons who are part of armed forces in non-international armed conflict and have been rendered hors de combat by detention. Third Geneva Convention, art. 3. Those provisions pre-suppose that states engaged in such conflicts can detain those who are part of armed groups. Likewise, Additional Protocol II to the Geneva Conventions expressly applies to “dissident armed forces” and “other organized armed groups” participating in certain non-international armed conflicts, distinguishing those forces from the civilian population. Additional Protocol II, art. 1(1), 13.

* * *

     In addition, in a speech to the National Archives in May 2009, Obama divided the Guantanamo into five categories: (1) those to be tried in federal court; (2) those to be tried in a military commission (see the Update to Problem II.D.3 below); (3) those ordered released by federal courts; (4) those who can be transferred to another country; and (5) those “who pose a clear danger to the American people.” Of this fifth group, the President stated:

[T]his is the toughest single issue that we will face. . . . [T]here may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.  Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. . . .

I am not going to release individuals who endanger the American people.  . . . Having said that, we must recognize that these detention policies . . . can't be based simply on what I or the executive branch decide alone.  . . . We must have clear, defensible, and lawful standards for those who fall into this category.  We must have fair procedures so that we don't make mistakes.  We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. . . .

[O]ur goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. . . . In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. . . . consistent with our values and our Constitution.

As of the fall of 2009, the President and Congress had not yet devised the “appropriate legal regime” and critics questioned whether he would meet the January 2010 deadline for closing Guantanamo.

Notes and Questions:

1. Rhetoric aside, does the United States government still believe that it is fighting a “global war on terror?”? Is the conflict an international armed conflict, a non-international armed conflict, or something else?

2. Under the U.S. view, what sort of involvement with Al Qaeda or other groups is enough to trigger the right to detain them?

Problem II.D.3.

     A number of important developments occurred after publication of the textbook, including the United States Supreme Court decision in Hamdan v. Rumsfeld and, thereafter, enactment of the Military Commission Act. An update that includes excerpts from the Court's opinion and the MCA can be found here

Update on Targeting Killings

     Beyond the detention and trial of suspected terrorists, the United States and other states have grappled with the legality of targeted assassination of such persons. Both the United States and Israel have admitted to engaging in these practices, the former against persons it claims are Al Qaeda members in Yemen and northern Pakistan, and the latter against persons it claims are members of various Palestinian armed groups. Although the killing of combatants during time of armed conflict is lawful under international law, difficult questions arise when (a) the killing takes place in situations that are not clearly armed conflicts; and (b) the targeted person is not clearly a combatant

     One of the most significant judicial opinions concerning the legality of such acts and the status of irregular combatants came from the Supreme Court of Israel in its December 2006 ruling on the legality of Israel’s policy of targeted killings of suspected terrorists. (For the full opinion click here.) Two Israeli NGOs, including the same group the brought the case concerning Israel’s interrogation practices, discussed in Chapter 7, Problem I, brought suit against the Israeli government and army. Since the beginning of the second Intifada, the Israeli military has assassinated (according to an Israeli NGO) some 210 people in the West Bank and Gaza Strip whom it asserted were leading terrorists representing an immediate threat to Israeli civilians and whom it asserted could not be arrested through traditional law enforcement. At least 125 innocent civilians have been killed in these operations. The petitioners claimed that the practice constituted illegal extrajudicial killing under international human rights law and, in the alternative, impermissible killing of civilians under international humanitarian law.

     The Court began its analysis by considering which body of law applied to the policy. Affirming earlier opinions that an international armed conflict existed between Israeli and terrorist organizations in the West Bank and Gaza, the Court decided that only the law of armed conflict applied, in particular customary international law reflected in the Geneva Conventions and in Protocol I (although Israel is not a party to the latter). In the course of the opinion, the Court considered the legal status of suspected terrorists under international humanitarian law:

B. Combatants

24. What makes a person a combatant? This category includes, of course, the armed forces. It also includes people who fulfill the following conditions ( The Hague Regulations, §1):

“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs
of war. . . .”

25. The terrorists and their organizations, with which the State of Israel has an armed conflict of international character, do not fall into the category of combatants. They do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. . . . Needless to say, unlawful combatants are not beyond the law. They are not "outlaws". God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law . . . That is certainly the case when they are in detention or brought to justice ( see §75 of The First Protocol, which reflects customary international law . . .). Does it follow that in Israel 's conduct of combat against the terrorist organizations, Israel is not entitled to harm them, and Israel is not entitled to kill them even if they are planning, launching, or committing terrorist attacks? If they were seen as (legal) combatants, the answer would of course be that Israel is entitled to harm them. Just as it is permissible to harm a soldier of an enemy country, so can terrorists be harmed. Accordingly, they would also enjoy the status of prisoners of war, and the rest of the protections granted to legal combatants. However, as we have seen, the terrorists acting against Israel are not combatants according to the definition of that term in international law; they are not entitled to the status of prisoners of war; they can be put on trial for their membership in terrorist organizations and for their operations against the army. Are they seen as civilians under the law? . . . .

C. Civilians

26. Customary international law regarding armed conflicts protects “civilians” from harm as a result of the hostilities. The International Court of Justice discussed that in The Legality of Nuclear Weapons, stating:

“states must never make civilians the object of attack” (p. 257).

That customary principle is expressed in article 51(2) of The First Protocol, according to which:

“The civilian population as such, as well as individual civilians, shall not be the object of attack”. . . .

Against the background of that protection granted to “civilians”, the question what constitutes a “civilian” for the purposes of that law arises. The approach of customary international law is that “civilians” are those who are not “combatants” . . . That definition is “negative” in nature. It defines the concept of “civilian” as the opposite of “combatant”. It thus views unlawful combatants – who, as we have seen, are not “combatants” – as civilians. Does that mean that the unlawful combatants are entitled to the same protection to which civilians who are not unlawful combatants are entitled? The answer is, no. Customary international law regarding armed conflicts determines that a civilian taking a direct part in the hostilities does not, at such time, enjoy the protection granted to a civilian who is not taking a direct part in the hostilities ( see §51(3) of The First Protocol). The result is that an unlawful combatant is not a combatant, rather a “civilian”. However, he is a civilian who is not protected from attack as long as he is taking a direct part in the hostilities. . . .

D. A Third Category: Unlawful Combatants?

27.       In the oral and written arguments before us, the State asked us to recognize a third category of persons, that of unlawful combatants. These are people who take active and continuous part in an armed conflict, and therefore should be treated as combatants, in the sense that they are legitimate targets of attack, and they do not enjoy the protections granted to civilians. However, they are not entitled to the rights and privileges of combatants, since they do not differentiate themselves from the civilian population, and since they do not obey the laws of war. Thus, for example, they are not entitled to the status of prisoners of war. The State’s position is that the terrorists who participate in the armed conflict between Israel and the terrorist organizations fall under this category of unlawful combatants.

28. . . . We shall take no stance regarding the question whether it is desirable to recognize this third category. The question before us is not one of desirable law, rather one of existing law. In our opinion, as far as existing law goes, the data before us are not sufficient to recognize this third category. . . . It is difficult for us to see how a third category can be recognized in the framework of the Hague and Geneva Conventions. It does not appear to us that we were presented with data sufficient to allow us to say, at the present time, that such a third category has been recognized in customary international law. However, new reality at times requires new interpretation. . . . In the spirit of such interpretation, we shall now proceed to the customary international law dealing with the status of civilians who constitute unlawful combatants.

6. Civilians who are Unlawful combatants . . .

30. The basic principle is that the civilians taking a direct part in hostilities are not protected from attack upon them at such time as they are doing so. This principle is manifest in §51(3) of The First Protocol, which determines:

“Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”

As is well known, Israel is not party to The First Protocol. Thus, it clearly was not enacted in domestic Israeli legislation. Does the basic principle express customary international law? The position of The Red Cross is that it is a principle of customary international law. That position is acceptable to us. . . .

31. The basic approach is thus as follows: a civilian – that is, a person who does not fall into the category of combatant – must refrain from directly participating in hostilities. A civilian who violates that law and commits acts of combat does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy – during that time – the protection granted to a civilian. He is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war. True, his status is that of a civilian, and he does not lose that status while he is directly participating in hostilities. However, he is a civilian performing the function of a combatant. As long as he performs that function, he is subject to the risks which that function entails and ceases to enjoy the protection granted to a civilian from attack . . . As long as he preserves his status as a civilian – that is, as long as he does not become part of the army – but takes part in combat, he ceases to enjoy the protection granted to the civilian, and is subject to the risks of attack just like a combatant, without enjoying the rights of a combatant as a prisoner of war. Indeed, terrorists who take part in hostilities are not entitled to the protection granted to civilians. . . .

D. The First Part: “Taking . . . part in hostilities”

33. Civilians lose the protection of customary international law dealing with hostilities of international character if they “take . . . part in hostilities.” What is the meaning of that provision? The accepted view is that “hostilities” are acts which by nature and objective are intended to cause damage to the army. . . . It seems that acts which by nature and objective are intended to cause damage to civilians should be added to that definition. According to the accepted definition, a civilian is taking part in hostilities when using weapons in an armed conflict, while gathering intelligence, or while preparing himself for the hostilities. Regarding taking part in hostilities, there is no condition that the civilian use his weapon, nor is their a condition that he bear arms (openly or concealed). It is possible to take part in hostilities without using weapons at all. . . .

E. Second Part: “Takes a Direct Part”

34. . . . It seems accepted in the international literature that an agreed upon definition of the term “direct” in the context under discussion does not exist . . . In that state of affairs, and without a comprehensive and agreed upon customary standard, there is no escaping going case by case, while narrowing the area of disagreement. On this issue, the following passage from COMMENTARY on the ADDITIONAL PROTOCOLS is worth quoting:

“Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly” (p. 516).

Indeed, a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it, is a civilian taking “an active part” in the hostilities. However, a civilian who generally supports the hostilities against the army is not taking a direct part in the hostilities. Similarly, a civilian who sells food or medicine to unlawful combatants is also taking an indirect part in the hostilities. . . .

And what is the law in the space between these two extremes? On the one hand, the desire to protect innocent civilians leads, in the hard cases, to a narrow interpretation of the term “direct” part in hostilities. . . . On the other hand, it can be said that the desire to protect combatants and the desire to protect innocent civilians leads, in the hard cases, to a wide interpretation of the “direct” character of the hostilities, as thus civilians are encouraged to stay away from the hostilities to the extent possible. . . .

35. Against the background of these considerations, the following cases should also be included in the definition of taking a “direct part” in hostilities: a person who collects intelligence on the army, whether on issues regarding the hostilities, or beyond those issues; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the function of combatants. . . . However, a person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. . . .

37. We have seen that a civilian causing harm to the army is taking “a direct part” in hostilities. What says the law about those who enlist him to take a direct part in the hostilities, and those who send him to commit hostilities? Is there a difference between his direct commanders and those responsible for them? Is the “direct” part taken only by the last terrorist in the chain of command, or by the entire chain? In our opinion, the “direct” character of the part taken should not be narrowed merely to the person committing the physical act of attack. Those who have sent him, as well, take “a direct part”. The same goes for the person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking an indirect part in the hostilities. Their contribution is direct (and active).

F. The Third Part: “For Such Time” . . .

39. As regarding the scope of the wording “takes a direct part” in hostilities, so too regarding the scope of the wording “and for such time” there is no consensus in the international literature. Indeed, both these concepts are close to each other. However, they are not identical. With no consensus regarding the interpretation of the wording “for such time”, there is no choice but to proceed from case to case. . . . On the one hand, a civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detached himself from that activity, is entitled to protection from attack. He is not to be attacked for the hostilities which he committed in the past. On the other hand, a civilian who has joined a terrorist organization which has become his “home”, and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack “for such time” as he is committing the chain of acts. . . .

40. These examples point out the dilemma which the “for such time” requirement presents before us. On the one hand, a civilian who took a direct part in hostilities once, or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other hand, the “revolving door” phenomenon, by which each terrorist has “horns of the alter” (1 Kings 1:50) to grasp or a “city of refuge” (Numbers 35:11) to flee to, to which he turns in order to rest and prepare while they grant him immunity from attack, is to be avoided . . . There is thus no escaping examination of each and every case. In that context, the following four things should be said: first, well based information is needed before categorizing a civilian as falling into one of the discussed categories. Innocent civilians are not to be harmed . . . The burden of proof on the attacking army is heavy. In the case of doubt, careful verification is needed before an attack is made. . .

Second, a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. In our domestic law, that rule is called for by the principle of proportionality. Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force. That question arose in McCann v. United Kingdom , 21 E. H. R. R. 97 (1995), hereinafter McCann. In that case, three terrorists from Northern Ireland who belonged to the IRA were shot to death. They were shot in the streets of Gibraltar , by English agents. The European Court of Human Rights determined that England had illegally impinged upon their right to life (§2 of the European Convention on Human Rights). So wrote the court:

“[T]he use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk” (p. 148, at paragraph 235).

Arrest, investigation, and trial are not means which can always be used. . . .. However, it is a possibility which should always be considered. It might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities ( see §5 of The Fourth Geneva Convention). Of course, given the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be used.

Third, after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent . In appropriate cases it is appropriate to pay compensation as a result of harm caused to an innocent civilian. Last, if the harm is not only to a civilian directly participating in the hostilities, rather also to innocent civilians nearby, the harm to them is collateral damage. That damage must withstand the proportionality test. . . .

Implementation of the General Principles in This Case

60. The . . . examination of the "*targeted* killing"–and in our terms, the preventative strike causing the deaths of terrorists, and at times also of innocent civilians–has shown that the question of the legality of the preventative strike according to customary international law is complex. . . The result of that examination is not that such strikes are always permissible [n]or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. As we have seen, we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.

* * *

     In June 2009, the International Committee of the Red Cross released a document, prepared over many years with the involvement of outside experts, stating its views on the meaning of “direct participation in hostilities” under IHL and Protocol I in particular. It included the following:

I. The concept of civilian in international armed conflict
For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.

II. The concept of civilian in non-international armed conflict
For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities ("continuous combat function"). . . .

V. Constitutive elements of direct participation in hostilities
In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:

1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and

2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and

3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

VI. Beginning and end of direct participation in hostilities
Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.

VII. Temporal scope of the loss of protection
Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-State party to an armed conflict cease to be civilians (see above II), and lose protection against direct attack, for as long as they assume their continuous combat function.

Notes and Questions:

1. How does the Israeli court’s views on targeting of suspected terrorists differ from the Bush Administration’s view that “unlawful combatants” are effectively a third category under international humanitarian law, in addition to combatants and civilians, who may be attacked anywhere at any time without advance warning? How broad is the court’s notion of participation in hostilities?

2. Where do the Court’s four standards in paragraph 40 come from? Humanitarian law? Human rights law? Domestic criminal law?

3. How does the Court’s general approach to interpreting international humanitarian law compare with that of the United States as seen in the documents in the casebook? Some readers of the opinion have suggested that Justice Barak’s rejection of the notion that unlawful combatants are complete “outlaws” (paragraph 25 above) was directed at the U.S. government.

4. In November 2002, an unpiloted CIA plane, the Predator, killed a group of men in the Yemeni desert whom the United States claimed were leading Al Qaeda officials; Predator attacks have continued since that time in northern Pakistan. What information would you need to know to evaluate the legality of this operation under the Israeli court’s test? Given the secrecy behind the CIA’s operations, is such review by courts or legislative oversight bodies (like congressional committees) possible?

5. How does the ICRC’s standard compare with that of the Israeli Supreme Court and of the U.S. Government in the brief excerpted above?