I think it's important to separate issues involving the actual conduct of hostilities from those related to other aspects of the "war" against terrorism proclaimed by the U.S., the UK, and its allies.

The conduct of military operations against Afghanistan, bin Laden's organization and/or against nations that harbor or support them is governed by international humanitarian law, specifically Geneva and Hague law applicable to the conduct of international warfare. Strict observance of the restraints and prohibitions in IHL by the warring parties should spare victims and avoid unnecessary suffering and destruction. Existing IHL is sufficient to regulate the conduct of hostilities.

The other aspects of this "war" are not really covered by IHL. In reality, while using the term "war", the U.S. is essentially talking about a comprehensive global strategy to confront and defeat terrorism. In that campaign, military force is only one, and not the dominant, tool. As Secretary of State Colin Powell, Attorney General John Ashcroft, and other members of the administration have indicated, bilateral and multilateral diplomacy, together with the aggressive extraterritorial application of U.S. laws ( such as blocking the foreign accounts and assets of suspected terrorists and front organizations) will be the principal weapons the U.S. and its allies will employ in this long-term campaign. This will involve using the United Nations and key regional organizations, such as the Council of Europe and the OAS, to promote cooperation and new laws in this fight.

One can reasonably expect that the U.S. and the other G-7 members will adapt a common policy to block loans and other forms of financial assistance from the World Bank and IMF, as well as bilateral aid, to states whose governments "sponsor" terrorism. Domestic measures taken by the U.S. to deal with terrorists and their accomplices found within this country which implicate the enjoyment of civil liberties raise serious issues under U.S.constitutional and human rights law, both customary and conventional (the U.S. is a party to the International Covenant on Civil and Political Rights).

IHL technically applies throughout the territories of all the warring parties during interstate hostilities and provides detailed rules regarding the status and treatment of enemy aliens who find themselves in the territory of the adverse party at the outset or during hostilities. The U.K., for example, during the Gulf war detained or interned various Iraqi nationals who were studying or living in Britain in accordance with the Third and Fourth Geneva Conventions. It seems doubtful that either the U.S. or the U.K., which are emphasizing that it has no quarrel with the Afghan people, will undertake similar, albeit lawful, actions against Afghan citizens in their countries. Were the U.S. to do so, all such persons would be entitled to basic constitutional safeguards, as appropriately informed by human rights law, which could "trump" the more permissive norms of IHL in this regard.

The use of the term "war" in connection with the global campaign against terrorism is thus something of a rhetorical flourish. This campaign, at least so far, has not changed the nature of warfare or the relevance and sufficiency of IHL. Like the "Cold War" in the last century, it will be waged by the various actors in a twilight zone that is not quite peace nor war, as such. When armed hostilities erupt either interstate or intrastate, whether characterized by regular or irregular warfare, humanitarian law becomes fully operative to the conduct of all the belligerents involved.

Click here to View Robert Kogod Goldman's response on "Terrorism and the laws of war" question.