No body of international law is more heavily subscribed to than the 1949 Geneva Conventions (190 Parties) and the two Protocols Additional of 1977 (160 and 154 Parties respectively). We should not be surprised, therefore, when ICRC President Jakob Kellenberger proclaims that "international humanitarian law is adequate to meet the challenges raised by modern conflict." For the majority of scholars and practitioners, the obstacles to achievement of the humanitarian aims reflected in these treaties lie in the realm of enforcement, not substance. In my view, however, the Conventions and Protocols contain significant fault lines that impede effective functioning. Three particularly problematic ones merit discussion in this forum.

Applicability of the Geneva Conventions and Protocols Additional

Following the horrendous attacks of September 11th, the United States launched its Global War on Terrorism (GWOT). Styling the operations as "war" was a shrewd rhetorical device intended to help prepare the US citizenry, and other countries, for their enormity and duration. But are they war as a matter of law?

The term "war" has lost its normative valence, for since 1949 the question has been the existence of either an international or non-international "armed conflict." These are the conditions precedent for application of humanitarian law. The four Geneva Conventions apply in international armed conflict, which they define as "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties" (Common Article 2). Protocol Additional I explicitly adopts Article 2, although it extends coverage to situations involving "fighting against colonial domination and alien occupation and against racist regimes in the exercise of [the] right of self-determination" (Article 1.3-4). The International Criminal Tribunal for the former Yugoslavia (ICTY) expressed the standard quite succinctly in Tadic: "an [international] armed conflict exists whenever there is a resort to armed force between States."

Common Article 3 (CA3) of the Geneva Conventions and Protocol Additional II pertain to non-international armed conflict. CA3, with its minimal protections, applies to "any case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." Not all violence suffices. Rather, as noted in the ICRC Commentary to the article, "the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities—conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country" (emphasis not added). Protocol II, which contains more robust limits, sets a higher threshold, an understandable fact given the reticence of States to accept external constraints on their discretion in handling internal strife. It applies to "all armed conflicts which are not covered by …[Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol" (Article 1.1). Not included in the Protocol’s ambit are "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature" (Article 1.2).

21st century conflict, especially the appearance of transnational terrorists who engage in large scale and prolonged campaigns, brings the adequacy of these textual thresholds into question. In the past, terrorism during international armed conflict was wrongful either because the acts were carried out by those without combatant status or because the targets were not military objectives. The law of non-international armed conflict outlawed acts of violence against those "taking no active part in the hostilities" [CA 3(I)(a)], thereby also effectively prohibiting terrorism. Beyond armed conflict, terrorism was either dealt with through law enforcement, as with the bombing of Pan Am 103 over Lockerbie, or by a very quick, surgical strike, as in the case of the 1998 cruise missile attacks against targets in the Sudan and Afghanistan following attacks on the American embassies in East Africa.

Post 9/11 counter-terrorist operations present a new paradigm. Consider Operation Enduring Freedom. By striking directly at the Taliban, Afghanistan’s de facto government, the United States and United Kingdom initiated an international armed conflict on October 7th. But when will the predicate for humanitarian law’s applicability—conflict between States—disappear in this case? Under international law, a condition of debellatio terminates an armed conflict. Arguably, this has occurred, for Taliban controlled territory has been conquered, its armed forces have been vanquished, and it has been replaced in power by the Karzai government.

So, what law applies to GWOT in the absence of an opponent State? Without State-on-State conflict, not the law of international armed conflict. Nor does the law of non-international armed conflict found in CA3 neatly fit. Although still potent, al Qa’ida is not engaging in hostilities "which are in many respects similar to an international war, but take place within the confines of a single country" and it does not resemble an "armed force." Instead, the organization is conducting a violent campaign of isolated acts from many locations against numerous countries with forces under varying degrees of control from the al Qa’ida leadership. Protocol Additional II also appears inapplicable, both because al Qa’ida controls no territory and because the GWOT is being carried out beyond the borders of the States conducting it.

The problem is that terrorists have turned to tactics that can be answered effectively only through prolonged, often intense, military action. Yet, without a direct link to either an international or strictly internal armed conflict, humanitarian law does not apply (unless adopted by a State as a matter of policy). Some have suggested that if the State in which the counter-terrorist operations occur objects to them, an international armed conflict would exist. While this claim is colorable, absent hostilities between the armed forces of the States involved, the better position posits a lacuna in the law governing such operations.

Thus, the first fault line appears during high order military operations against transnational terrorists, either in direct response to a terrorist campaign or following the defeat of a State participating in it. Neither the Conventions nor the Protocols anticipated this form of hostilities and neither would seem malleable enough to fit comfortably.

Performing Proportionality Calculations

A second fault line, albeit not new, lies in application of the proportionality principle. This customary international law principle was first codified in Protocol I. Article 51.5(b) provides that an attack is indiscriminate, and therefore forbidden, if it "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," a prohibition repeated in Article 57. Reduced to basics, the principle mandates a balancing test. The military advantage that accrues from an attack is weighed against the; unintended, but foreseeable, collateral damage to civilian objects and incidental injury to civilians.

Three major obstacles exist to conducting the balancing. First, whether the standard applies separately to individual facets of an attack or the attack as a whole remains unsettled. Certain countries, such as the United Kingdom and Italy, deemed this matter so important that they have issued formal statements embracing the latter approach. Although this represents the weight of opinion, consensus remains elusive.

Second, the phrase "concrete and direct military advantage" is too vague for practical application. According to the ICRC Commentary, "the expression…was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would appear only in the long term should be disregarded." This formula illustrates the problem it purports to resolve. Obviously, substantial and close advantages are concrete and direct; equally obviously, hardly perceptible and long term ones are not. But simply diversifying adjectives is no answer at all. Ultimately, the warfighter is left to rely on personal judgment…and run the risk of after-the-fact second-guessing. The Commentary assertion that "[e]ven if this system is based to some extent on subjective evaluation, the interpretation must above all be a question of common sense and good faith for military commanders," offers little solace.

Third, the principle requires balancing two dissimilar values — military advantage and collateral damage/incidental injury. How can one possibly compare the value of a tank, for example, against that of a group of homes? Or, how does the military value of denying an enemy petroleum, oil and lubricants (POL) compare to environmental damage caused by destroying POL storage facilities? In the absence of an objective and common measure of valuation, the balancing will be questionable in all but the extreme cases.

Further complicating matters is the fact that the value attributed to a target or collateral damage/incidental injury depends on who is making the assessment, when it occurs, and the circumstances existing at the time. Take human life. While its value should be a constant, in fact it varies during armed conflict. For instance, in a setting of great misery the value ascribed to life may drop. Tragic as this reality may be, it is simply the case that in a setting where death has become pervasive, human beings become numbed by it. Or reflect on the dehumanizing effects of ethnic, racial, religious or national hatred. Such hatred leads to disregard of an enemy population’s suffering, thereby perniciously skewing the proportionality calculations.

Likewise, consider context, the circumstances holding when the proportionality calculation is made. The International Court of Justice highlighted its importance in the 1996 advisory opinion on the Threat or Use of Nuclear Weapons. There the Court held that the use of such weapons would generally be inconsistent with humanitarian law, primarily because of the difficulty in complying with the proportionality principle. Yet, it withheld judgment on situations in which the survival of a State was at stake; they were so complex that the judges could not achieve sufficient consensus to address the matter.

Even in day-to-day combat operations, context is a complicating factor. For instance, destruction of agricultural areas is more detrimental to a State reliant on its own agricultural production than to one that depends on food imports, whereas disruption of a railway used for imports would be more harmful to the latter. Conversely, the military advantage of neutralizing an airfield is very high in the opening days of a conflict, but lower once air supremacy is achieved. The point is that the values of military targets and civilian objects are not constants; indeed, one senior Naval commander with much experience in combat operations labeled proportionality the toughest decision he had to make in war.

Defining Military Objectives

A third fault line lies in the concept of military objective. By Article 52 of Protocol I, military objectives are "objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." The ICRC Commentary notes that the definition includes combatants.

This formula poses several impediments to objective application. For instance, when does an advantage become "definite"? Much discussion of the standard took place during meetings of the Working Group that drafted the article. Among the adjectives considered were distinct, direct, clear, immediate, obvious, specific and substantial. Yet, the Group’s Rapporteur professed uncertainty as to the basis for choosing "definite." Moreover, the negotiating history does not clarify the distinction, if any, between a "definite" advantage and proportionality’s "concrete and direct" criterion. Nor does the Commentary help when it labels an attack "which only offers potential or indeterminate advantages" as illegitimate. That is self-evident.

Even more troublesome is the adjective "military," and the related requirement that the intended target make an "effective contribution to military action." These qualifiers would appear to necessitate a direct impact on ongoing, imminent, or reasonably foreseeable military operations.

Yet, some nations construe the standard more liberally. For instance, the US position, set forth in the Commander’s Handbook on the Law of Naval Operations, is that "[e]conomic targets that indirectly but effectively support and sustain the enemy’s war-fighting capability may…be attacked." This explanation begs the question of the intended scope of "support and sustain." Consider a national banking system. Attacking it—e.g., through computer network attack—would throw a country into disarray, thereby indirectly impeding combat capability. Legitimate military objective? Or can the production facilities of a country that relies on export earnings to finance its military be struck? Similarly, as countries draw down their force structure, they are increasingly outsourcing activities traditionally performed by military units, while also turning to off-the-shelf products to minimize the cost of equipping their militaries. Are the assets of defense contractors or factories that produce civilian items adaptable to military use valid military objectives? These and other similar targets lie in a grey area of military objectives about which no consensus exists.

The growing adoption of compellance strategies further hampers consistent identification of military objectives. In a compellance strategy, the objective is not to defeat an enemy, but rather to compel it to take, or desist from, a particular course of action. Most international armed conflict that "First Tier" States engage in for the foreseeable future will be of this nature.

We have already witnessed such strategies in action. Illustrative was Operation Allied Force (OAF), the 1999 NATO bombing campaign designed to compel Milosovic to quit slaughtering Kosovar Albanians. There have also been numerous compellance campaigns against Iraq. For instance, in 1993 the US fired 24 cruise missiles at Iraqi intelligence headquarters after discovery of a plot to assassinate former President Bush — one goal was to alter Iraqi cost-benefit calculations regarding terrorism. Three years later, the United States again struck Iraqi targets following Iraq’s capture of Irbil, which lies in northern Iraq’s Kurdish enclave. Iraqi forces have withdrawn from the area. In 1997, the US and UK launched Operation Desert Fox, a massive air campaign in response to Iraqi non-cooperation with the UN weapons inspection regime. And, as this piece is being written, there is great pressure on Iraq to cooperate with the inspection regime set up pursuant to Security Council Resolution 1441. Although the scent of regime change is in the air, one alternative strategic option is a limited campaign designed to compel Saddam into compliance.

The logic of compellance encourages a broadening of the concept of military objectives because it targets the enemy decision maker’s cost-benefit calculations. Thus, the center of gravity (defeat not being the objective) may not be the armed forces, but rather the opponent’s political or economic base. Recall the OAF air component commander suggesting that one of his objectives was to deny Belgrade electricity so the population would pressure the FRY government to comply with NATO demands. There is little question that an electrical grid can be a legitimate target, indeed a valuable one given its role in command and control. Yet, if struck because of its civilian nature, then it is not a traditional military objective no matter how much impact it has on military operations. The problem is that the lawfulness of such strikes depends on the mens rea of those ordering them; during a compellance campaign that state of mind will always be suspect, absent an ill-advised public statement such as that made in the OAF case. Or recall the NATO strike on the Serb media headquarters in Belgrade that formed the basis for the Bankovic litigation in the European Court of Human Rights. Although the Court skillfully avoided addressing the question of whether the target was a military objective by claiming a lack of jurisdiction, the attack generated enormous controversy.

Thus, with regard to military objectives, the challenges are two-fold. First, it is difficult for the warfighter to interpret the standard. With foresight, various delegations to the conferences that drafted Protocol I opined that "the article was insufficiently precise on too many points and that it would give rise to controversy." Even the ICRC Commentary, albeit pleased that progress had been made in codifying the prohibition, nevertheless noted that its application "largely relies on the judgment of soldiers who will have to apply these provisions."

Perhaps more ominously, the changing nature of armed conflict incentivizes a liberal approach to military objectives. In fairness, whether this is a negative dynamic has yet to be seen — after all, compellance strategies may be used to compel results that save lives.

Other Issues

It is worth briefly mentioning several other pressing issues regarding the treaties. A growing problem is the duty of care obligation found in Article 57 of Protocol I. It requires that "those who plan or decide upon an attack…do everything feasible to verify that the objectives to be attacked are…military objectives…[and]…take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects."

This standard can encourage normative relativism. Due to the high cost of C4ISR (command, control, communications, computers, intelligence, surveillance, reconnaissance) assets, as well as precision weaponry, only a few States can afford to field a force capable of a high degree of discrimination during attacks. Thus, the "everything feasible" and "all feasible precautions" verbiage imposes a higher de facto standard of care on information age militaries than on a lesser equipped forces. Understandably, the former sometimes view the greater scrutiny they are subjected to as inequitable (even though the intent of humanitarian law is to protect non-participants, not ensure a fair fight), thereby weakening overall commitment to the principle. That some countries which could afford state of the art equipment elect not to adequately fund their military, especially certain NATO members, and thus operate under a lesser duty of care, only pours salt in the perceived wound.

Terrorism and non-international armed conflict exacerbate the situation. It is extraordinarily difficult to exercise a high degree of care while effectively combating terrorists or rebels who are intentionally hiding their activities and identities. Indeed, they have little reason to distinguish themselves from the civilian population, for their actions are already criminal. Again, those charged with prosecuting the campaign against them have an incentive in such circumstances to interpret the care standard very liberally. This may be a positive or negative tendency, but it, as with those cited above, is one that deserves thoughtful analysis.

Another issue, discussed often and at great length, involves prisoner of war status. The US refusal to grant status to its detainees is clearly merited for members of al Qa’ida. On the other hand, a very good argument could be mounted that Taliban detainees either deserve POW status or have a right to have their status determined by a tribunal pursuant to Article 5 of the Third Geneva Convention.

Regardless of the legal merit of the US position, there are practical reasons for it. Acknowledgement that a detainee is a lawful combatant entitled to POW status bars prosecution for participation in military actions against coalition forces. Moreover, the Convention requires release upon termination of the conflict, a point that may have already been reached. Although POWs may be held for a reasonable period beyond conclusion of the conflict for the purpose of prosecution, in many cases the quality and quantity of evidence against specific detainees is very low. In some cases, the Northern Alliance simply turned them over to US forces with an assertion that they were either al Qa’ida or Taliban. Although the US has already released a number of detainees, a large-scale release would inevitably result in some returning home to engage in future terrorist operations. This is the reality of 21st century conflict, in which the lines between international armed conflict, internal armed conflict, terrorism and criminality are becoming increasingly blurred.

A particular problem in humanitarian law is the absence of a well-developed law of non-international armed conflict, for most conflict is now internal in character. As noted, CA3 and Protocol II provide only very basic parameters for the conduct of hostilities and the protection of non-participants. In response, international tribunals such as the ICTY have broadly characterized the scope of customary law applicable to such conflicts. The drafters of the International Criminal Court Statute did likewise when delineating the offenses over which the court will exercise jurisdiction. Further development of this body of law would mark an overdue step in advancing humanitarian principles. Unfortunately, because States are hesitant to accept limits on their discretion in handling internal violence, progress will be gradual at best. Moreover, because non-government forces are by definition already engaging in violations of domestic criminal law, criminalizing that behavior under international law will have little deterrent effect. Thus, governments view the law of non-international armed conflict as targeted primarily against their forces.

Finally, the mantra that the missing link is enforcement rings true. Until recently, international humanitarian law depended on States for enforcement — and they usually did a poor job. The emergence of both international (Rwanda/Yugoslavia) and joint domestic-international (Sierra Leone/ East Timor) tribunals marks a major step in strengthening the norms contained in the Geneva Conventions and the Protocols Additional. So too does establishment of the International Criminal Court. Paradoxically, strengthening the enforcement regime tends to make some States reluctant to fortify or clarify the substantive provisions of treaty law, lest their decision-makers and military personnel become targets of prosecution. Similarly, the less robust the enforcement mechanisms, the more ready States are to raise the humanitarian bar. For example, while the United States generally accepts the prohibitions contained in the ICC Statute, it objects to the Court’s expansive jurisdiction.

In the final analysis, it is unquestionable that the shifting nature of conflict, particularly the advent of transnational terrorism and the prevalence of non-international armed conflict, has rendered some aspects of Geneva Conventions and Protocols Additional ill-fitting. It remains uncertain whether the best remedy is to tighten or relax existing prohibitions. Adding to this problem is the fact that there has been little progress, either through practice or commentary, in resolving the imprecision of various key prohibitions in the treaties. Finally, we should not be surprised when efforts to enhance both the substance and enforceability of humanitarian law encounter opposition, particularly from those States most likely to find themselves involved in armed conflict. Nevertheless, given the current global security condition, vigorous encouragement and support of international endeavors to critically analyze humanitarian law and address its fault lines are essential.

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