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International Humanitarian Law
Prepared for the 2014 -15
National Debate Topic Selection Committee of the
National Federal of State High School Associations
Eric C. Sigmund
Legal Advisor, International Humanitarian Law Dissemination
American Red Cross
Washington, DC
July 8, 2013
1
Timeliness and Interest
Background
International humanitarian law (IHL), also known as the “law of war” or “law of armed
conflict”, is a body of law which regulates the conduct of combatants on the battlefield,
protecting those who do not or are no longer taking part in hostilities and limiting the means and
methods of warfare in order to alleviate human suffering during armed conflict.1 IHL does not
address whether a nation is justified in using military force but instead assumes the presence of
armed conflict and is therefore only concerned with humanizing conflict, balancing military
necessities with the preservation of human dignity.2
The need for restrictions during war is clear. The risk of civilian death and criminal abuse
is greater than ever before. Advancements in military technology, the proliferation of weapons,
and impunity for war crimes have made it easier for nations and armed groups to deal death and
destruction without repercussion. Today’s conflicts are being fought in densely populated urban
settings, putting civilians at extreme risk of collateral harm. Over the last century civilian
casualties during armed conflict has increased exponentially and now account for around 90% of
total wartime casualties.3
For some, the unrestrained killing of civilians seems an unfortunate but natural, or even
necessary consequence of war; after all, war is war. Cicero once famously observed “Inter arma
enim silent leges”, roughly translated as “in times of war, the law falls silent”.4
Ultimately, Cicero’s claim is both inaccurate and dehumanizing. For centuries, military
customs and codes of conduct have reduced human suffering in war and protected vulnerable
populations from harm. Since the American Civil War these customs and courtesies have
formed into a robust set of international laws and norms found in numerous multilateral treaties,
an extensive body of both international and domestic judicial decisions, and the general practice
of nations.5 Military personnel throughout the chain of command, as well as non-state actors are
bound by these laws. Although some refuse to comply, violators may be prosecuted for their
illegal acts. International criminal tribunals have been established to prosecute those most
responsible for war crimes and crimes against humanity, strengthening compliance regimes.6
Domestic courts complement this system, bringing to justice others alleged to have committed
grave beaches of IHL.
Since the American Civil War, the United States has played an instrumental role in the
development of IHL, offering the first modern codification of rules regulating battlefield conduct
in 1863 with the pronouncement by President Abraham Lincoln of General Order No. 100,
commonly known as the “Lieber Code”.7 150 years later, the United States continues to be a
leader in the development of IHL but has increasingly pushed the law to its outer most bounds
(or beyond) in recent years.
2
Recognizing the horror of war on civilian populations and military personnel, the
international community of nations has taken on the difficult task of creating international norms
to regulate the conduct of soldiers. Momentum at the turn of the 20th
century for the codification
of humanitarian principles into hard law led to the adoption of a number of international treaties
which remain at the foundation of IHL today; however it was the horrors of World War II which
led to the creation of an international criminal justice regime and precipitated a push for a
universal set of rules governing conduct in war.
The Geneva Conventions, which today serve as the foundation for modern IHL, are the
only international treaties that have been adopted by every nation in the world.8 Their universal
acceptance illustrates the importance of this body of law as a cornerstone of international
relations. Based on four central tenants: 1. military necessity (only targets offering a definitive
military advantage can be attacked); 2. distinction (fighters must at all times distinguish between
military targets and civilian persons and buildings); 3. proportionality (attacks cannot cause
collateral damage which is excessive to the military advantage gained from the attack); 4. the
prevention of unnecessary suffering (belligerents must not use means and methods of warfare
which cause superfluous injury or unnecessary suffering), IHL is a critical ceiling on the use of
force during armed conflict.9
But modern conflicts have not only changed the dynamic of warfare, they have also
changed the dynamics of the law. Non-state armed groups, indistinguishable from the civilian
population, often act outside of the law, killing indiscriminately and using terrorism to exploit
military asymmetries. Nations also operate in the grey space of the law as they seek to gain any
military advantage possible over opposing forces and employ cutting edge weaponry not
imagined when the Geneva Conventions were adopted 64 years ago. As war and the tools to
fight it continue to evolve, so too must our understanding of the limits on war. Where the
appropriate balance is between military necessity and humanity is up for debate!
International Humanitarian Law as a Policy Debate Topic
The high school community has previously debated restrictions on international arms
sales in 1982-83 (Resolved: That the United States should significantly curtail its arms sales to
other countries); restrictions on weapons of mass destruction in 1964-65 (Resolved: That nuclear
weapons should be controlled by an international organization) and in 2001-02 (Resolved: That
the United States federal government should establish a foreign policy significantly limiting the
use of weapons of mass destruction); and detention in 2005-06 (Resolved: The United States
federal government should substantially decrease its authority either to detain without charge or
to search without probable cause).10
Recent Lincoln Douglas (LD) and Public Forum (PF) topics have also drawn attention to
a number of IHL related issues, in particular: foreign intervention to stop human rights abuses
3
(LD Mar/Apr. ’13); the extension of constitutional rights to non-citizen terrorists (LD Sept/Oct.
’12); targeted killing (LD Mar/Apr. ’12 & PF 2013 National Tournament); the use of private
military companies (LD Mar/April ’11); and intervention for democracy promotion (PF 2011
Nationals), however discussions on the use of force during war have largely not been replicated
in the policy forum.11
The prevalence of international law related topics in the LD and PF circuits illustrates the
importance of these issues to the debate community. Debating limits on the use of force in the
policy forum would expand upon these discussions with a new target audience and offer an
opportunity to view policy proposals from a broader perspective, considering social, legal,
political and philosophical considerations, in addition to moral ones which dominate LD debate.
Making IHL the centerpiece of policy debate for an entire year will allow debaters to delve into
contemporary issues in greater depth and respond the changing circumstances in law and policy
over the course of the year, creating more dynamic and educated debates. The more narrow
focus on the use of force by military personnel in armed conflict proposed in this paper will also
ensure original debate content, framing discussions around a more nuanced set of laws and
regulations largely unfamiliar to youth in the United States and eliminating redundant debate on
issues like detention. For these reasons, IHL is ripe for debate in the policy forum.
Knowledge of International Humanitarian Law in the United States
Whether we know it or not, international humanitarian law plays a huge role in all of our
lives. Research reveals that most do not know it.
In 2011, the American Red Cross conducted a survey of 1019 adults and 502 youth (ages
12-17) to analyze the level of awareness among the general public about the Geneva
Conventions and to also gauge sentiment regarding conduct those surveyed believed was
appropriate during armed conflict. The survey revealed that while 55% of adults felt they were
“somewhat familiar” or “very familiar” with the Geneva Conventions, only 20% of youth
responded in kind. 59% of youth believed it was “acceptable at least sometimes” to torture
captured soldiers in order to acquire important military information, but most startling was that
41% of youth indicated it was “acceptable at least sometimes” for the enemy to torture American
soldiers for military information.12
These figures reveal not only a general lack of knowledge
about IHL among youth, but also that youth are more likely to believe certain unlawful practices
are acceptable during armed conflict.
As a nation which has engaged in dozens of small and large scale conflicts since World
War II, approximately 77% of adults have a close friend or relative has served in the military.13
Citizens are concerned about the lives and the treatment of American soldiers abroad. They are
also concerned about the perception of the United States on the world stage and whether the
military is acting in accordance with the rule of law. The atrocity of My Lai14
and various
4
incidents in Iraq15
and Afghanistan16
have drawn international condemnation and remain a dark
blemish on the human rights record of the United States.
The wars in Iraq and Afghanistan, as well as the United States response to terrorism
around the world, have dominated political debates over the last four presidential terms. The
most recent presidential election saw President Obama levering the death of Osama bin Laden, to
counter charges by Mitt Romney over security failures in Benghazi, Libya.17
Debates over the
use of force also dominate mainstream media coverage and public debates. The use of “drones”,
the targeted killings of American citizens, the status of terrorists, and use of military contractors
in armed conflicts are emerging issues discussed in courtrooms, legislative sessions, the
classroom, and even around the water cooler every day.
Despite the historical role of the United States in developing IHL, current military
practice rooted in strict respect of the law, and the universal adoption of the Geneva Conventions
of 1949, most Americans remain unaware that rules in war exist. Encouragingly, the Red Cross
survey found that 8 in 10 youth believed that they should receive more education on international
humanitarian law before they become eligible to vote or enlist in the military.18
The emergence
of new questions of law and policy set the stage for an interesting, challenging and timely topic,
with timeless educational value.
Existing Programs
The United States has adopted a comprehensive body of domestic law regulating the use
of force by the military during armed conflict. These laws limit when force can be used,
who/what represents a legal military target, as well as what types of weapons can be used during
combat operations.19
Military personnel are trained in these rules of conduct, expressed in the
military’s Rules of Engagements and elsewhere.20
Judge Advocates work directly with battlefield
commanders providing advice and guidance on the scope of the law and how to use lethal force
in compliance with legal obligations. Failure to abide by legal limits on force can result in
criminal prosecution of soldiers and commanders under the Uniform Code of Military Justice.21
Separate federal laws regulate the jurisdiction of military courts22
, detention
authorization23
, the status of enemy fighters24
, and codify into the United States Code grave
breaches of the Geneva Conventions and other international obligations.25
Despite a significant
push by political and military leaders to increase education of and compliance with international
humanitarian law in recent decades, violations of IHL still occur.
Although the President is the Commander-in-Chief of the armed forces with wide
discretion to choose how military force is used during war,26
this power is not without limit.
The President can sign on to bind the United States to treaties, provided that two thirds of the
Senate offers its advice and consent.27
In addition, it is Congress which the power “to declare
5
war, grant letters of marque and reprisal, and make rules concerning captures on land and water”,
“raise and support armies”, to “provide and maintain a navy” and to “make rules for the
government and regulation of the land and naval forces.”28
Congressional investigations into the
Obama administration’s drone program also reveals that Congress may initiate inquiries into
Executive actions taken without proper authorization or deemed to be contrary to the law.29
Questions concerning the lawful use of military force and scope of military authorization
have also dominated the docket of the Supreme Court and lesser courts throughout the country
for the past 12 years.30
The Court, historically reluctant to intervene with respect to Executive
decisions during war, has reviewed numerous controversies covering issues of detention and
treatment of foreign fighters both at home and abroad31
, addressing whether US citizens held at
Guantanamo are eligible for habeas rights32
, and whether US citizens may be remotely targeted
in foreign countries33
. The clash between the co-equal branches of government offers a
compelling backdrop to debate important issues of humanitarian law and policy.
Range and Scope
Remote Warfare
The use of unmanned aerial vehicles has become a centerpiece of the US’ efforts to
eradicate terrorism. Since 2009, President Obama has significantly increased the use of these
weapon platforms, commonly referred to as drones, to kill suspected terrorists.34
The use of
drones presents numerous potential advantages within the realm of IHL. Drones can gather great
amounts of intelligence about potential targets by loitering for long durations of time, providing
military commanders with the most current and comprehensive information possible to
determine whether force may be used, and if so, the most appropriate means of attack.35
This
information, as well as the precision guided munitions carried by drones, allows commanders to
better distinguish between military targets and civilian persons, reducing collateral damage.36
Despite the advantages of these systems, the potential for their misuse is serious.
Pakistan, Iran and others have demanded the cessation of surveillance and targeting operations
within their borders, calling US drone operations a clear violation of national sovereignty.37
So-called “signature strikes” are conducted by considering a target’s observable
behavioral and demographic characteristics and comparing them to those typically associated
with terrorist forces, making a person a possible target of attack without confirming the true
identity of the individual.38
Reports have also revealed an alarming pattern of so-called drone
“double-taps”, referring to secondary strikes on first responders to an initial missile strike.39
If
proven, this would be a clear violation of international humanitarian law.
6
Moreover, the United States continues to struggle with the role of the CIA in drone
warfare40
, the geographic scope of the battlefield41
and the legality of targeting an American
citizen abroad42
. The operation against al-Qaeda officer Anwar al-Awlaki, and release of the
Department of Justice “White Paper” justifying his killing, provides additional ground to debate
remote warfare.43
These issues present extreme challenges for political leaders, lawyers and
human rights activists who struggle to understand the nature of these strikes in the context of
international and domestic legal obligations. As conflict continues to extend further from
traditional battlefields, these questions will inspire passionate debate among citizens for years to
come.
Non-State Actors
The legal rules that apply during hostilities against or between non-state armed groups
remains an intensely debated subject in legal and political circles. The transnational conflict
against terrorism, pitting professional military forces against militant fighters who refuse to wear
uniforms or carry arms openly is seemingly without geographic boundary.44
It was not until
2006, in the landmark case of Hamdan v. Rumsfeld that the Supreme Court ruled that Common
Article 3 protections of the Geneva Convention applied to detainees at Guantanamo Bay.45
Despite focusing greater attention in recent years on detention issues, the debate on the
appropriate limits on the use of force against terrorist suspects and the scope of the military
theater of combat continues without resolve. When can you kill a person who is a farmer by day
but a fighter by night? Can you kill an associate of al-Qaeda who merely serves as a
propagandist? Does the Authorization for Use of Military Force (AUMF) extend globally? Can
the fight against terrorism be sustained indefinitely?
The use of private military contractors and mercenaries similarly raise difficult questions
about the applicability of IHL. The outsourcing of war fighting raises the prospect of civilian
casualties and abuse of the law.46
This new phenomenon illustrates potential gaps in the law,
exploited by governments and private companies. Status of forces agreements often extend
immunity to private military contractors, contributing to inadequate oversight and lack of legal
repercussions for crimes committed.
Other Emerging Technologies and Weapon Systems
Killer robots, laser weapons, and lighting weapons may generate mental images of
combat in a galaxy far-far away, however, these emerging weapons technologies are already a
reality. Autonomous weapons systems which can identify, categorize and respond to threats
without human intervention are being deployed on naval vessels and near the demilitarized zone
between North and South Korea.47
Blinding laser weapons have already been prohibited by
7
international humanitarian law48
but a new generation of heat weapons49
and “directed-energy
weapons”50
may fall outside of current prohibitions. While the Geneva Convention mandates that
new weapon systems be tested for compliance with the laws of war prior to their deployment,
whether a weapon system is inherently illegal is a flexible and subjective determination.
Cyber Warfare
Cyber warfare represents the next generation of war fighting. Over 100 nations are
creating or have already established offensive and/or defensive cyber capabilities within the
military ranks.51
Some analysts contend that the United States is currently engaged in a cyber
arms race with China and other nations in the quest to develop sophisticated military programs.
China for instance has touted the establishment of its own cyber division, now estimated to be
roughly 100,000 personnel strong.52
The United States has prioritized the development of cyber
capabilities, devoting substantial resources to their development. Despite rapidly scaling up
cyber operations, online attacks on US government agencies and corporations are near daily
occurrences.53
The recent infiltration of US networks containing top secret data on advanced
weapon systems by suspected Chinese agents led one House Representative to assert that the US
is engaged in a cyber war with China.54
The use of cyber capabilities to supplement and complement kinetic operations has been
widely documented. Russia, in one of the first large scale state-to-state cyber operations,
launched powerful denial of service attacks against the government of Estonia in retaliation for
domestic moves to distance the country from its Soviet past.55
Israel conducted cyber attacks
against its neighbor and longtime foe, Syria, prior to a strike on a suspected Syrian nuclear
facility.56
The United States is also suspected of launching the Stuxnet virus which shut down
hundreds of Iranian nuclear centrifuges in 2010.57
But cyber space is not within the exclusive control of national governments. Small
groups and even individuals, acting independently or on behalf of governments, can wreak havoc
on cyber networks. During the most recent incursion of Israeli forces into Gaza, the clandestine
group “Anonymous” reportedly conducted 40,000 cyber strikes against Israeli networks. While
little damage was reported, the capabilities of individuals and groups will increase in the future.58
On September 12, 2012 then legal advisor for the U.S. Department of State, Harold Koh,
announced for the first time the United States’ position that “international law principles do
apply in cyberspace.” Outlining a series of 10 principles in the context of cyber warfare, Koh
acknowledged that the law regulating conduct in cyberspace was at its infancy, and that no
international consensus existed even with regards to whether international humanitarian law
could, as the US believes, apply to military operations online.59
8
Treaties
Despite the historical prominence of the United States in shaping international
humanitarian law norms, the United States has declined to sign and ratify a number of IHL
treaties in recent decades. Specifically, the United States has declined to bind itself to Additional
Protocol I and II of the Geneva Conventions of 1949, the Convention on the Rights of the Child,
the First and Second Protocols to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict, the Rome Statute of the International Criminal Court,
the Ottawa Convention, the Convention on Cluster Munitions, and ratification of the
international Arms Trade Treaty seems unlikely.60
Implicating both the means and methods of
warfare, IHL treaties bring an additional international flavor to this topic.
Balance and Materials Available
The debate over appropriate conduct in armed conflict and the laws applicable to modern
asymmetric conflicts between nations and non-state actors has been a politicized one with
comprehensive answers unlikely in the short term. Since much of international humanitarian law
operates in the “fog of war”, this topic is diverse in subject matter and equally rich in
perspectives. It is a common misperception that the debate over measures to strengthen the rule
of law is one between proponents of national security protections on the one hand, and advocates
of human rights protections on the other. Politicians, practitioners, as well as military
professionals present a wide array of viewpoints, prioritizing different considerations on IHL
issues which hit close to home.
By focusing on restrictions on the use of force during armed conflict debaters are given a
precise framework in which to operate, eliminating generic debates about the legality of wars
themselves and instead forcing debaters to examine the specific ways forced is employed on the
battlefield. Moreover, limiting the proposed policy recommendations to address the use of force
by military personnel adds greater specificity to the context, excluding issues examined in recent
years such as detention policy and the rights of terrorists. Operating within this context,
affirmative teams may pursue a variety of mechanisms to increase restrictions on the use of
force. Proponents of the resolution may regulate when forced is used by defining the geographic
and temporal scopes of the battlefield, may choose to regulate specific means of warfare such as
emerging weapon systems considered un- or under-regulated by current legal regimes, or may
choose to regulate specific methods of warfare, such as cyber operations.
While proponents of the resolution are afforded flexibility to choose different approaches
for affirming restrictions on the use of force, requiring proponents to limit their policy
recommendations to address the use of military force during armed conflict will ensure
predictable, in depth debate, preserving substantial negative ground.
Since regulations on military force by political entities often precipitates backlash from
the military ranks, military disadvantages such as readiness and hegemony will be strong
9
negative positions. Politics disadvantages will also be prominent. Spending and tradeoff
disadvantages may find a unique place in core negative arguments, particularly in the era of
sequestration, as increased regulations will necessarily imply new administrative costs. Critiques
of power and the law will also provide negative teams useful philosophical options to attack
affirmative plans.
Although these positions are prominent in many foreign policy oriented topics,
international humanitarian law provides additional generic negative ground. Relations and
alliance disadvantages will be strong positions as revision of codes of combatant conduct will
affect military interoperability with allies or alternatively, may reduce confidence in the US
military umbrella. Restrictions on the use of force may also decrease incentives to pursue
humanitarian interventions, resulting in the proliferation and increase severity of conflicts. New
restrictions on the conduct of traditional military personnel may also precipitate a shift of
military operations to clandestine agencies which operate outside of the scope of the law. Hot
spot disadvantages will offer case specific options to counter new policy proposals.
Finally, both affirmative and negative teams will have unparalleled access to different
policy implementing agents. At the core of the domestic debate over IHL issues is the
constitutional balance of powers between the separate but interconnected branches of the federal
government. The debate over the use of military force has been the most prominent and hotly
contested national issue since September 11, 2001, pulling the Executive, Legislative and
Judicial branches of the federal government into unprecedented fight for authority. Unlike any
topic in recent history, international humanitarian law is uniquely situated to delve into the
balance of power and the constitutional mandates of the these different governmental actors.
Conclusion
The use of force during armed conflict is the quintessential hybrid topic. International
humanitarian law is grounded in international sources such as treaties and foreign relations
policy, but also maintains a dominant presence in domestic law and policy, one which will not
dissipate in the future. With America’s historic contribution to the development of international
humanitarian law, its stress on IHL implementation, and challenges raised by the evolution of the
battlefield, this topic addresses issues relevant to future policy makers, lawyers and advocates
while ensuring ample room to engage in lively and compelling debates. The focus on legal
protections brings a new element to the debate, presenting a narrow but dynamic context for
teams on either side of the debate. The increasing prominence of law and war in public discourse
ensures easy access to information, translatable concepts and a level playing field for all.
10
Potential Resolutions
1. Resolved: The United States federal government should substantially increase restrictions on
the use of force by military personnel during armed conflict.
2. Resolved: The United States federal government should establish new restrictions on the use
of force by military personnel during armed conflict.
3. Resolved: The United States federal government should substantially increase the
restrictiveness of the rules of engagement for military personnel applicable during armed
conflict.
4. Resolved: The United States federal government should substantially increase restrictions on
the use of force by military personnel in armed conflict for the protection of civilians.
5. Resolved: The United States federal government should substantially increase legal
protections for any class of persons protected by the Geneva Conventions of 1949.
11
Definitions
Any
The American Heritage Dictionary Online
adj.
1. One, some, every, or all without
specification: Take any book you want. Are
there any messages for me? Any child
would love that. Give me any food you don't
want.
2. Exceeding normal limits, as in size or
duration: The patient cannot endure
chemotherapy for any length of time.
Merriam-Webster Online Dictionary
1: one or some indiscriminately of whatever
kind:
a : one or another taken at random <ask any
man you meet>
b : EVERY —used to indicate one selected
without restriction <any child would know
that>
2: one, some, or all indiscriminately of
whatever quantity:
a : one or more —used to indicate an
undetermined number or amount <have you
any money>
b : ALL —used to indicate a maximum or
whole <needs any help he can get>
c : a or some without reference to quantity
or extent <grateful for any favor at all>
3
a : unmeasured or unlimited in amount,
number, or extent <any quantity you desire>
b : appreciably large or extended <could not
endure it any length of time>
Armed
The American Heritage Dictionary Online
v. armed, arm·ing, arms
v.intr.
1. To supply or equip oneself with
weaponry.
2. To prepare oneself for warfare or conflict.
Black’s Law Dictionary – the
lawdictionary.org
A vessel is “armed” when she is fitted with a
full armament for fighting purposes. She
may be equipped for warlike purposes,
without being “armed.” By “armed” it is
ordinarily meant that she has cannon, but if
she had a fighting crew, muskets, pistols,
powder, shot, cutlasses, and boarding
appliances, she might well be said to be
equipped for warlike purposes, though not
armed. 2 Hurl. & C. 537; Murray v. The
Charming Betsy, 2 Cranch, 121, 2 L. Ed.
208.
Armed conflict
The Prosecutor v. Limaj (International
Criminal Tribunal for the Former
Yugoslavia), 2005
“The determination of the existence of an
armed conflict is based solely on two
criteria: the intensity of the conflict and the
organization of the parties, the purpose of
the armed forces to engage in acts of
violence or also achieve some further
objective is, therefore, irrelevant.” – Limaj
Case, ICTY (2005)
12
Johnson, November 30 (Speech by Jeh
Johnson, General Counsel, United States
Department of Defense at Oxford
University, “The Conflict Against Al
Qaeda and its Affiliates: How Will it
End?”, November 30, 2012 available at
http://www.lawfareblog.com/2012/11/jeh-
johnson-speech-at-the-oxford-union/).
In the current conflict with al Qaeda, I can
offer no prediction about when this conflict
will end, or whether we are, as Winston
Churchill described it, near the “beginning
of the end.” I do believe that on the present
course, there will come a tipping point – a
tipping point at which so many of the
leaders and operatives of al Qaeda and its
affiliates have been killed or captured, and
the group is no longer able to attempt or
launch a strategic attack against the United
States, such that al Qaeda as we know it, the
organization that our Congress authorized
the military to pursue in 2001, has been
effectively destroyed. At that point, we must
be able to say to ourselves that our efforts
should no longer be considered an “armed
conflict” against al Qaeda and its associated
forces; rather, a counterterrorism effort
against individuals who are the scattered
remnants of al Qaeda, or are parts of groups
unaffiliated with al Qaeda, for which the law
enforcement and intelligence resources of
our government are principally responsible,
in cooperation with the international
community – with our military assets
available in reserve to address continuing
and imminent terrorist threats. At that point
we will also need to face the question of
what to do with any members of al Qaeda
who still remain in U.S. military detention
without a criminal conviction and sentence.
In general, the military’s authority to detain
ends with the “cessation of active
hostilities.”[22]
State Department, 2011 (Report of the
United States of America Submitted to
the U.N. High Commissioner for Human
Rights in Conjunction with the Universal
Period Review, Department of State,
2011, pg 20, available at
http://www.state.gov/documents/organiza
tion/146379.pdf)
The United States is currently
at war with Al Qaeda and its
associated forces. President
Obama has made clear that
the United States is fully
committed to complying with
the Constitution and with all
applicable domestic and
international law, including
the laws of war, in all aspects
of this or any armed conflict.
US reiterated its compliance
with the rules of war and
human rights.
Supreme Court of the United States, 2006
(Supreme Court of the United States,
Hamdan v. Rumsfeld, Secretary of
Defense, et al., No. 05-184, Decided June
29, 2006).
The Court of Appeals thought, and the
Government asserts, that Common Article 3
does not apply to Hamdan because the
conflict with al Qaeda, being “‘international
in scope,’” does not qualify as a “‘conflict
not of an international character.’” 415 F.
3d, at 41. That reasoning is erroneous. The
13
term “conflict not of an international
character” is used here in contradistinction
to a conflict between nations. So much is
demonstrated by the “fundamental logic [of]
the Convention’s provisions on its
application.” Id., at 44 (Williams, J.,
concurring). Common Article 2 provides
that “the present Convention shall apply to
all cases of declared war or of any other
armed conflict which may arise between two
or more of the High Contracting Parties.” 6
U. S. T., at 3318 (Art. 2, ¶1). High
Contracting Parties (signatories) also must
abide by all terms of the Conventions vis-à-
vis one another even if one party to the
conflict is a nonsignatory “Power,” and must
so abide vis-à-vis the nonsignatory if “the
latter accepts and applies” those terms. Ibid.
(Art. 2, ¶3). Common Article 3, by contrast,
affords some minimal protection, falling
short of full protection under the
Conventions, to individuals associated with
neither a signatory nor even a nonsignatory
“Power” who are involved in a conflict “in
the territory of” a signatory. The latter kind
of conflict is distinguishable from the
conflict described in Common Article 2
chiefly because it does not involve a clash
between nations (whether signatories or
not). In context, then, the phrase “not of an
international character” bears its literal
meaning. See, e.g., J. Bentham, Introduction
to the Principles of Morals and Legislation
6, 296 (J. Burns & H. Hart eds. 1970) (using
the term “international law” as a “new
though not inexpressive appellation”
meaning “betwixt nation and nation”;
defining “international” to include “mutual
transactions between sovereigns as
such”);Commentary on the Additional
Protocols to the Geneva Conventions of 12
August 1949, p. 1351 (1987) (“[A] non-
international armed conflict is distinct from
an international armed conflict because of
the legal status of the entities opposing each
other”).
Although the official commentaries
accompanying Common Article 3 indicate
that an important purpose of the provision
was to furnish minimal protection to rebels
involved in one kind of “conflict not of an
international character,” i.e., a civil war, see
GCIII Commentary 36–37, the
commentaries also make clear “that the
scope of the Article must be as wide as
possible,” id., at 36.63
In fact, limiting
language that would have rendered Common
Article 3 applicable “especially [to] cases of
civil war, colonial conflicts, or wars of
religion,” was omitted from the final version
of the Article, which coupled broader scope
of application with a narrower range of
rights than did earlier proposed iterations.
See GCIII Commentary 42–43.
Applicable
The American Heritage Dictionary Online
adj. Capable of being applied; relevant or
appropriate: a rule not applicable in all
cases; added the applicable sales tax.
Civilians
Black’s Law Dictionary – the
lawdictionary.org
One who is skilled or versed in the civil law.
A doctor, professor, or student of the civil
law. Also a private citizen, as distinguished
from such as belong to the army and navy or
(in England) the church.
14
Merriam-Webster.com
noun
1: a specialist in Roman or modern civil law
2a : one not on active duty in the armed
services or not on a police or firefighting
force
Class
The American Heritage Dictionary Online
n.
1. A set, collection, group, or configuration
containing members regarded as having
certain attributes or traits in common; a kind
or category.
2. A division based on quality, rank, or
grade, as:
a. A grade of mail: a package sent third
class.
b. A quality of accommodation on public
transport: tourist class.
Black’s Law Dictionary – the
lawdictionary.org
The order or rank according to which
persons or things are arranged or assorted.
Also a group of persons or things, taken
collectively, having certain qualities in
common, and constituting a unit for certain
purposes; e.
Conflict
The American Heritage Dictionary Online
n.
1. A state of open, often prolonged fighting;
a battle or war.
2. A state of disagreement or disharmony
between persons or ideas; a clash: a conflict
over water rights.
During
The American Heritage Dictionary Online
prep.
1. Throughout the course or duration of:
suffered food shortages during the war.
2. At some time in: was born during a
blizzard.
Engagement
The American Heritage Dictionary Online
n. 1. a. The action of engaging or the state of
being engaged: engagement in diplomacy.
b. The condition of being in gear:
engagement of the transmission.
2. a. A mutual promise to get married.
b. The period during which this promise is
kept: a long engagement.
3. A pledge or obligation: meeting one's
engagements.
15
4. A promise or agreement to be at a
particular place at a particular time: a dinner
engagement.
5. a. Employment, especially for a specified
time: his engagement with the firm.
b. A specific, often limited, period of
employment: a speaking engagement.
6. A hostile encounter; a battle.
Establish
Merriam-Webster Online Dictionary –
Merriam-webster.com
1: to institute (as a law) permanently by
enactment or agreement
2 obsolete : SETTLE 7
3a : to make firm or stable
b : to introduce and cause to grow and
multiply <establish grass on pasturelands>
4a : to bring into existence : FOUND
<established a republic>
b : BRING ABOUT, EFFECT <established
friendly relations>
5a : to put on a firm basis : SET UP
<establish his son in business>
b : to put into a favorable position
c : to gain full recognition or acceptance of
<the role established her as a star>
Force
Merriam-Webster Online Dictionary –
Merriam-webster.com
1a (1) : strength or energy exerted or
brought to bear : cause of motion or change
: active power <the forces of nature> <the
motivating force in her life> (2) capitalized
—used with a number to indicate the
strength of the wind according to the
Beaufort scale <a Force 10 hurricane>
b : moral or mental strength
c : capacity to persuade or convince <the
force of the argument>
2a : military strength
b (1) : a body (as of troops or ships)
assigned to a military purpose (2) plural :
the whole military strength (as of a nation)
c : a body of persons or things available for
a particular end <a labor force> <the missile
force>
d : an individual or group having the power
of effective action <join forces to prevent
violence> <a force in politics>
e often capitalized : POLICE FORCE —usually
used with the
3: violence, compulsion, or constraint
exerted upon or against a person or thing
American Heritage Online Dictionary
5. a. Military strength.
b. A unit of a nation's military personnel,
especially one deployed into combat
Geneva Conventions of 1949
International Committee of the Red Cross,
2013
The Geneva Conventions and their
Additional Protocols are at the core of
international humanitarian law, the body of
international law that regulates the conduct
of armed conflict and seeks to limit its
effects. They specifically protect people who
are not taking part in the hostilities
(civilians, health workers and aid workers)
and those who are no longer participating in
the hostilities, such as wounded, sick and
shipwrecked soldiers and prisoners of war.
16
Military
Black’s Law Dictionary – the
lawdictionary.org
Pertaining to war or to the army; concerned
with war. Also the whole body of soldiers;
an army.
The American Heritage Dictionary Online
adj.
1. Of, relating to, or characteristic of
members of the armed forces: a military
bearing; military attire.
2. Performed or supported by the armed
forces: military service.
3. Of or relating to war: military operations.
4. Of or relating to land forces.
n. pl. military also mil·i·tar·ies
1. Armed forces: a country ruled by the
military.
2. Members, especially officers, of an armed
force.
Personnel
The American Heritage Dictionary Online
n.
1. (used with pl. verb) The people employed
by or active in an organization, business, or
service.
2. The department of human resources in an
organization.
Persons
The American Heritage Dictionary Online
n 6. Law A human, corporation,
organization, partnership, association, or
other entity deemed or construed to be
governed by a particular law.
Protected
The American Heritage Dictionary Online
tr.v. pro·tect·ed, pro·tect·ing, pro·tects
1.
a. To keep from being damaged, attacked,
stolen, or injured; guard. See Synonyms at
defend.
b. To keep from being subjected to difficulty
or unpleasantness: a mother who wanted to
protect her children from the troubles she
had seen when growing up.
c. To keep from being curtailed or exposed
to risk: The reporter vowed to protect the
privacy of his sources.
2. To help (domestic industry) with tariffs or
quotas on imported goods.
Protections
Dictionary.com
noun
1. the act of protecting or the state of being
protected; preservation from injury or harm.
2. a thing, person,
17
Restricting (Restriction)
Black’s law dictionary
1. A limitation or qualification.
2. A limitation (esp. in a deed) placed on the
use or enjoyment of property.
3. Military Law. A Deprivation of liberty
involving moral and legal, rather than
physical, restraint.. A military restriction is
imposed as punishment either by
commanding officer’s nonjudicial
punishment or by a summary, special or
general court-martial. Restriction is a lesser
restraint because it permits the restricted
person to perform full military duties.
Restrictive (Restrictiveness)
Merriam-Webster Online Dictionary
1a : of or relating to restriction
b : serving or tending to restrict <restrictive
regulations>
2: limiting the reference of a modified word
or phrase
3: prohibiting further negotiation
— restrictive noun
— re·stric·tive·ly adverb
— re·stric·tive·ness noun
Rules (Rule)
Black’s Law Dictionary
n. 1. Generally, an established an
authoritative standard or principle; a general
norm mandating or guiding conduct or
action in a given type of situation.
Rules of Engagement
Joint Pub. 1-02, Dictionary of Military and
Associated Terms (cited in Operational
Law Handbook, International and
Operational Law Development, The Judge
Advocate General’s Legal Center &
School, U.S. Army Charlottesville, Virginia
2011, pg. 73).
Rules of Engagement are directives issued
by competent military authority that
delineate the circumstances and limitations
under which U.S. [naval, ground, and air]
forces will initiate and/or continue combat
engagement with other forces encountered.
Joint Pub. 1-02, Dictionary of Military and
Associated Terms (cited in Operational
Law Handbook, International and
Operational Law Development, The Judge
Advocate General’s Legal Center &
School, U.S. Army Charlottesville, Virginia
2011, pg. 73).
“A. Rules of Engagement (ROE) are the
primary tools for regulating the use of force,
making them a cornerstone of the
Operational Law discipline. The legal
factors that provide the foundation for ROE,
including customary and treaty law
principles regarding the right of self-defense
and the laws of war, are varied and complex.
However, they do not stand alone; non-legal
issues, such as political objectives and
military mission limitations, also are
essential to the construction and application
of ROE. As a result of this multidisciplinary
reach, Judge Advocates (JA) participate
significantly in the preparation,
18
dissemination, and training of ROE.
Although Jas play an important role, ROE
ultimately are the commander’s rules that
must be implemented by the Soldier, Sailor,
Airman, or Marine who executes the
mission. “
Use
Merriam-Webster Online Dictionary –
Merriam-webster.com
v.tr.
1. To put into service or employ for a
purpose: I used a whisk to beat the eggs. The
song uses only three chords.
2. To avail oneself of; practice: use caution.
3. To conduct oneself toward; treat or
handle: "the peace offering of a man who
once used you unkindly" (Laurence Sterne).
4. To seek or achieve an end by means of;
exploit: used their highly placed friends to
gain access to the president; felt he was
being used by seekers of favor.
5. a. To take or consume for a purpose: She
used her savings to buy a computer.
b. To partake of, especially as a habit: She
rarely uses alcohol.
Use of Force
Charter of the United Nations, Art. 2(4) All members shall refrain in their international
relations from the threat or use of force against
the territorial integrity or political
independence of any state, or in any other
manner inconsistent with the Purposes of the
United Nations.
Law of Armed Conflict Deskbook,
Operational Law Handbook,
International and Operational Law
Development, pg. 30, The Judge Advocate
General’s Legal Center & School, U.S.
Army Charlottesville, Virginia 2012
The UN Charter mandates that all member
States resolve their international disputes
peacefully.1
It also requires that States refrain
in their international relations from the threat
or use of force against the territorial integrity
or political independence of any State.2
This
ban on aggression, taken from Article 2(4) of
the UN Charter, is regarded as the heart of the
UN Charter and the basic rule of
contemporary public international law.3
An
integral aspect of Article 2(4) is the principle
of non-intervention, which provides that States
must refrain from interference in other States’
internal affairs.4
Put simply, nonintervention
stands for the proposition that States must
respect each other’s sovereignty.
Law of Armed Conflict Deskbook,
Operational Law Handbook,
International and Operational Law
Development, pg, 29, The Judge Advocate
General’s Legal Center & School, U.S.
Army Charlottesville, Virginia 2012
General. In both customary and treaty law,
there are a variety of internationally-
recognized legal bases for the use of force in
relations between States. Generally speaking,
however, modern jus ad bellum (the law
governing a State’s resort to force) is reflected
in the United Nations (UN) Charter. The UN
Charter provides two bases for a State’s
choice to resort to the use of force: Chapter
VII enforcement actions under the auspices of
the UN Security Council, and self-defense
pursuant to Article 51 (which governs acts of
both individual and collective self-defense).
19
Law of Armed Conflict Deskbook,
Operational Law Handbook,
International and Operational Law
Development, Pg. 29 The Judge Advocate
General’s Legal Center & School, U.S.
Army Charlottesville, Virginia 2012
Before committing U.S. military force abroad,
decision makers must make a number of
fundamental policy determinations. The
President and the national civilian leadership
must be sensitive to the legal, political,
diplomatic, and economic factors inherent in a
decision to further national objectives through
the use of force. The legal aspects of such a
decision, both international and domestic, are
of primary concern in this determination. Any
decision to employ force must rest upon the
existence of a viable legal basis in
international law as well as in domestic law
(including application of the 1973 War Powers
Resolution (WPR), Public Law 93-148, 50
U.S.C. §§ 1541-1548). This chapter will focus
exclusively on the international legal basis for
the use of force.
23
Example Bibliography
Benjamin Wittes et. al., Lawfare (Blog): Hard National Security Choices, 2013 available at
http://www.lawfareblog.com/ .
Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War, Cambridge University
Press 2011.
Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge,
2010 pg. 187.
Integrating the Law, International Committee of the Red Cross, May 2007.
International Committee of the Red Cross, War and Law, updated 2013 available at
http://www.icrc.org/
Jean-Marie Hanckaerts and Louise Doswald-Beck, Customary International Humanitarian Law,
Cambridge University Press 2005.
Law of Armed Conflict Deskbook, Operational Law Handbook, International and Operational
Law Development, The Judge Advocate General’s Legal Center & School, U.S. Army
Charlottesville, Virginia 2012 available at http://www.loc.gov/rr/frd/Military_Law/pdf/LOAC-
Deskbook-2012.pdf
Marco Sassoli et.al, How Does Law Protect in War? International Committee of the Red Cross,
Mar. 2011.
Michael N. Schmitt ed., Tallin Manual on the International Law Applicable to Cyber Warfare,
Cambridge University Press 2013 available at http://www.ccdcoe.org/249.html.
Nils Melzer, Interpretive Guidance on the notion of Direct Participation in Hostilities under
International Humanitarian Law, International Committee of the Red Cross, May 2009.
Operational Law Handbook, International and Operational Law Development, The Judge
Advocate General’s Legal Center & School, U.S. Army Charlottesville, Virginia 2012 available
at http://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2012.pdf .
Rules of Engagement Handbook, International Institute of Humanitarian Law, San Remo, Italy
Nov. 2009 available at http://www.usnwc.edu/getattachment/7b0d0f70-bb07-48f2-af0a-
7474e92d0bb0/San-Remo-ROE-Handbook.aspx
The Law of Armed Conflict / International Humanitarian Law Research e-Portal, U.S. Naval
War College, 2013 available at
http://usnwc.libguides.com/content.php?pid=324502&sid=2760020.
24
The Law of Land Warfare, The Department of the Army, FM 27-10, July 18, 1956 available at
http://www.loc.gov/rr/frd/Military_Law/pdf/law_warfare-1956.pdf.
The Manual on the Law of Non-International Armed Conflict, with Commentary, International
Institute of Humanitarian Law, San Remo, Italy, 2006 available at
http://www.iihl.org/iihl/Documents/The%20Manual%20on%20the%20Law%20of%20NIAC.pdf
Tristan Ferraro ed. Occupation and Other Forms of Administration of Foreign Territory,
International Committee of the Red Cross, Apr. 2012.
25
Example Search Engine Terms and Results
A cursory search of simple terms and phrases related to international humanitarian law reveals a
deep library of resources and information. The following searches, done with the Google search
engine, are illustrative of the breadth of information and accessibility of international
humanitarian law resources:
Term/Phrase: “International Humanitarian Law”
Results: 1,910,000 results
Term/Phrase: “Law of Armed Conflict”
Results: 208,000 results
Term/Phrase: “Geneva Conventions of 1949”
Results: 879,000 results
Term/Phrase: “War Crimes”
Result: 11,000,000
Term/Phrase: “Means and Methods of Warfare”
Result: 12,100,000 results
Term/Phrase: Drone or “Unmanned Aerial Vehicle”
Result: 1,420,000 results
Term/Phrase: Cyber warfare
Results: 10,500,000 results
Term/Phrase: “Non-international armed conflict”
Result: 1,080,000 results
26
Organizations / Interest Groups
American Society of International Law – www.asil.org/
Crimes of War Project - http://www.crimesofwar.org/
Frederick K. Cox Law Center War Crimes Research Portal - http://www.law.case.edu/war-
crimes-research-portal/
Geneva Call - http://www.genevacall.org/home.htm
InterAction – www.interaction.org/
International Committee of the Red Cross – www.icrc.org
International Criminal Court - http://www.icc-cpi.int/Pages/default.aspx
International Humanitarian Law Research Initiative - http://ihl.ihlresearch.org/
International Institute of Humanitarian Law – www.iihl.org/
Professionals in Humanitarian Assistance and Protection (PHAP) –http://phap.org/
Program on Humanitarian Policy and Conflict Research (HPCR) – www.hpcrresearch.org
Rule of Law in Armed Conflict Project - http://www.geneva-academy.ch/RULAC/
United Nations Office for the Coordination of Humanitarian Affairs (OCHA) – www.unocha.org
United Nations Office of the High Commissioner for Human Rights (OHCHR) – www.ohchr.org
United Nations Refugee Agency – www.unhcr.org
United States Naval War College - http://usnwc.libguides.com/LOAC-IHL
United States State Department – www.state.gov/
27
INTERNATIONAL HUMANITARIAN LAW
1. Resolved: The United States federal government should substantially increase restrictions on
the use of force by military personnel during armed conflict.
2. Resolved: The United States federal government should establish new restrictions on the use
of force by military personnel during armed conflict.
3. Resolved: The United States federal government should substantially increase the
restrictiveness of the rules of engagement for military personnel applicable during armed
conflict.
4. Resolved: The United States federal government should substantially increase restrictions on
the use of force by military personnel in armed conflict for the protection of civilians.
5. Resolved: The United States federal government should substantially increase legal
protections for any class of persons protected by the Geneva Conventions of 1949.
Possible cases: Increasing restrictions on the use of force during armed conflict can take a
number of different forms including: prohibiting military tactics or methods of warfare,
regulating the use of emerging weapon systems and technologies, ratifying international treaties,
and defining the geographic or temporal scope of the battlefield. While this topic may be
perceived as allowing too much affirmative ground, the focus on increasing restrictions on the
use of force during armed conflict will be inherent limitations on the scope of affirmative cases.
Negative approaches: Given the debate at all levels of government and the military, there will be
a strong base of core negative ground. Politics, hegemony and military disadvantages will be
strong arguments. Allied relations, hotspot, tradeoff/shift and spending disadvantages will also
be prominent. Agent counterplans will be uniquely suited for this topic, providing ample
alternative mechanisms for plan implementation. Critiques of militarism and the legal system
will also be available to negative teams.
Debatability: The use of force during wartime has captured the attention US citizens for the last
twelve years. Debates over the use of force, including the appropriate use of drone technology,
the targeted killing of American citizens, the detention of alleged terrorists, and the authority of
the separate but co-equal branches of the federal government to manage wartime policy have
been the single most contentious issue in public and private circles during this time. These
debates continue without resolve. A topic covering restrictions on the use of force is diverse in
subject matter and equally rich in perspectives. It is a common misperception that the debate
over measures to strengthen the rule of law is one between proponents of national security
protections on the one hand, and advocates of human rights protections on the other. Politicians,
practitioners, as well as military professionals present a wide array of viewpoints, prioritizing
different considerations on this issue which hit close to home. With a wide availability of easily
28
accessible public resources, all teams will have equal opportunity to engage in debates
concerning restrictions on the use of force during armed conflict regardless of budgetary
constraints or the size of debate squads. Debating restrictions on the conduct of soldiers in war
would also address demand for additional IHL education among youth and teach students
valuable skills which they can apply in future careers, in voting booths, during military service or
even just around the water cooler.
Synopsis of the Topic Area: International humanitarian law (IHL), otherwise known as the “law
of armed conflict” or “law of war”, seeks, for humanitarian reasons, to limit the means and
methods of warfare, protecting vulnerable populations from the effects of war and minimizing
human suffering during armed conflict. IHL does not address whether a nation is justified in
using military force but instead assumes the presence of armed conflict and is therefore only
concerned balancing military necessities with the preservation of human dignity. Debates about
IHL focus on restrictions on the use of force by soldiers. Proponents of greater restrictions may
regulate when forced is use, prohibit the use of specific means of warfare such as emerging
weapon systems considered un- or under-regulated by current legal regimes, or may choose to
regulate specific methods of warfare, such as cyber operations. Opponents are flush with
arguments raised by military planners, politicians and even human rights activists against greater
regulations on the conduct of combatants. As war and the tools to fight it continue to evolve, so
too must our understanding of the limits on war. Where the appropriate balance is between
military necessity and humanity is up for debate!
29
Endnotes
1 International Committee of the Red Cross, War and International Humanitarian Law, Oct. 29, 2010 available at
http://www.icrc.org/eng/war-and-law/overview-war-and-law.htm. 2 International Committee of the Red Cross, IHL and other legal regimes – jus ad bellum and jus in bello, Oct. 29,
2010 available at http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm. 3 The United Nations Children’s Fund (UNICEF), Information: Impact of Armed Conflict on Children, 1996 available
at http://www.unicef.org/graca/patterns.htm. 4 Law of Armed Conflict Deskbook, Operational Law Handbook, International and Operational Law Development,
The Judge Advocate General’s Legal Center & School, U.S. Army Charlottesville, Virginia 2012, pg. 7 available at
http://www.loc.gov/rr/frd/Military_Law/pdf/LOAC-Deskbook-2012.pdf (hereinafter “LOAC Deskbook”). 5 Joan Policastri and Sergio D. Stone, International Humanitarian Law, American Society of International Law, 2013
available at http://www.asil.org/erg/?page=ihuml#id.utnofdl7zmb5; International Committee of the Red Cross, What is International Humanitarian Law? Advisory Service on International Humanitarian Law, 2004 available at http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf. 6 International Committee of the Red Cross, Ad hoc tribunals, Oct. 29, 2010 available at
http://www.icrc.org/eng/war-and-law/international-criminal-jurisdiction/ad-hoc-tribunals/overview-ad-hoc-tribunals.htm. 7 The Avalon Project, General Order No. 100: The Lieber Code, Yale Law School, 2008 available at
http://avalon.law.yale.edu/19th_century/lieber.asp; International committee of the Red Cross, Instructions for the Government of Armies of the United States in the Field (Lieber Code) 24 April 1863, 2012 available at http://www.icrc.org/ihl.nsf/INTRO/110. 8 International Committee of the Red Cross, South Sudan: world’s newest country signs up to the Geneva
Conventions, July 19, 1012 available at http://www.icrc.org/eng/resources/documents/news-release/2012/south-sudan-news-2012-07-09.htm. 9 LOAC Deskbook, supra note 4, pg. 135; Gary Solis, “The Law of Armed Conflict: International Humanitarian Law in
War”, Cambridge University Press, 2010, pg. 250-286. 10
National Forensics League, Past Policy Debate Topics, 2012 available at https://www.nflonline.org/StudentResources/PastPolicyDebateTopics. 11
National Forensics League, Past Lincoln-Douglas Debate Topics, 2012 available at https://www.nflonline.org/StudentResources/PastLincolnDouglasTopics; National Forensics League, Past Public Forum Debate Topics, 2012 available at https://www.nflonline.org/StudentResources/PastPublicForumTopics. 12
American Red Cross, Survey on International Humanitarian Law, Mar. 2011 available at www.redcross.org/-images/MEDIA_CustomProductCatalog/m12940087_Survey_on_International_Humanitarian_Law.pdf. 13
Id. 14
History.com, This Day in History - Mar. 16, 1968: My Lai massacre takes place in Vietnam, updated 2013 available at http://www.history.com/this-day-in-history/my-lai-massacre-takes-place-in-vietnam. 15
Rebecca Leung, Abuse of Iraqi POWs by GIs Probed, CBSNews, Feb. 11, 2009 available at http://www.cbsnews.com/stories/2004/04/27/60ii/main614063.shtml (Abu Ghraib prison scandal). 16
Kirk Johnson, Guilty Plea by Sergeant in Killing of Civilians, New York Times, June 5, 2013 available at http://www.nytimes.com/2013/06/06/us/sergeant-robert-bales-testimony.html?_r=0 (Murder of 16 Afghan civilians by Staff Sgt. Robert Bales); Elisabeth Buhiller, Video Shows U.S. Killing of Reuters Employees, New York Times, April 5, 2010 available at http://www.nytimes.com/2010/04/06/world/middleeast/06baghdad.html (U.S. helicopter pilots kill 2 Reuters journalists in Afghanistan). 17
Chris McGreal, Obama still faces tough questions on Benghazi attack after debate, The Guardian, Oct. 17, 2012 available at http://www.guardian.co.uk/world/2012/oct/17/obama-benghazi-questions-debate. 18
American Red Cross, supra note 12. 19
LOAC Deskbook, supra note 4, pg. 19-20. 20 Joint Pub. 1-02, Dictionary of Military and Associated Terms (cited in Operational Law Handbook, International
and Operational Law Development, The Judge Advocate General’s Legal Center & School, U.S. Army Charlottesville,
30
Virginia 2011, pg. 73); Rules of Engagement Handbook, International Institute of Humanitarian Law, San Remo,
Italy Nov. 2009 available at http://www.usnwc.edu/getattachment/7b0d0f70-bb07-48f2-af0a-7474e92d0bb0/San-
Remo-ROE-Handbook.aspx. 21
Uniform Code of Military Justice, Title 10 United States Code Chapter 47 available at http://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47. 22
Military Commissions Act of 2009, H.R. 2647-385 available at http://www.mc.mil/Portals/0/MCA20Pub20Law200920.pdf; Title 10 United States Code §948b-d available at http://www.law.cornell.edu/uscode/text/10/948b (specifying jurisdiction of military commissions). 23
Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 24
Id.; Ex-parte Quirin, 317 U.S. 1 (1942); Title 10 United States Code §948a available at http://www.law.cornell.edu/uscode/text/10/948a (defining “unprivileged enemy belligerent”). 25
Title 18 United States Code §2441 available at http://www.law.cornell.edu/uscode/text/18/2441(war crimes). 26
United States Constitution, Article II, Section 2. 27
Id. 28
United States Constitution, Article I, Section 8. 29
Lesa Jansen, Obama to release document on targeted killings to Congress, CNN, Feb. 7, 2013 available at http://www.cnn.com/2013/02/07/us/drones-classified-document. 30
Hamdan, supra note 23; Hamdi, supra note 23; Rasul v. Bush, 542 U.S. 466 (2004). 31
Id. 32
Hamdi, supra note 23; Boumediene v. Bush, 553 U.S. 723 (2008). 33
Al-Aulaqui v. Obama, 727 F.Supp.2d 1 (D.D.C. 2012). 34
Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan, Stanford Law School & New York University School of Law HRW/HRW / NYU Law Report on Drones, Sept. 2012 available at http://livingunderdrones.org/wp-content/uploads/2012/10/Stanford-NYU-LIVING-UNDER-DRONES.pdf. 35
Gary Solis, Viewpoint: Drones, modern war, and the US, BBC News, July 18, 2012 available at http://www.bbc.co.uk/news/world-us-canada-18896236. 36
Id. 37
Huffington Post, Pakistan: Drone Strikes are Violations of Sovereignty, June 4, 2012 available at http://www.huffingtonpost.com/2012/06/04/pakistan-drone-strikes_n_1568016.html; Tehran Times, NAM condemns violation of Iranian airspace by U.S. spy drone, Jan. 18, 2012 available at http://www.tehrantimes.com/politics/94655-nam-condemns-violation-of-iranian-airspace-by-us-spy-drone. 38
Kenneth Roth, What Rules should Govern US Drone Attacks?, Human Rights Watch, Mar. 11, 2013 available at http://www.hrw.org/news/2013/03/11/what-rules-should-govern-us-drone-attacks; Peggy McInerny, U.S. drone signature strikes: An often illegal “killing machine”, UCLA International Institute, April 9, 2013 available at http://www.international.ucla.edu/news/article.asp?parentid=131351. 39
Living Under Drones, supra note 34. 40
Gary Solis, CIA drone attacks produce America’s own unlawful combatants, The Washington Post, Mar. 12, 2010 available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/11/AR2010031103653.html; Tabassum Zakaria and Mark Mosenball, Pentagon to Take over some CIA drone operations: sources, Reuters, May 20, 2013 available at http://www.reuters.com/article/2013/05/21/us-usa-drones-idUSBRE94K03720130521. 41
Jeh Johnson, “The Conflict against Al Qaeda and its Affiliates: How Will it End?” Speech at Oxford University Nov. 30, 2012, transcript available at http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/; Leon Panetta, “Remarks by Secretary Panetta at the Center for a New American Security, Washington, D.C.”, Nov. 20 2012, available at http://www.defense.gov/transcripts/transcript/aspx?transcriptid=5154; International Committee of the Red Cross, Contemporary challenges for IHL, Feb. 5, 2013 available at http://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/overview-contemporary-challenges-for-ihl.htm. 42
Al-Aulaqui v. Obama, supra note 33; NBC News, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force, (Department of Justice White Paper), 2012 available at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf (hereinafter “White Paper”).
31
43
White Paper, supra note 42. 44
Johnson, supra note 41. 45
Hamdan, supra note 23. 46
International Review of the Red Cross, “Private Military Companies” Vol. 88, No. 863, Sept. 2006. 47
Human Rights Watch, Losing Humanity: The Case Against Killer Robots, Nov. 2012 available at http://www.hrw.org/sites/default/files/reports/arms1112_ForUpload.pdf. 48
Protocol IV to the 1980 Convention on Certain Conventional Weapons (Blinding Laser Weapons), Oct. 13, 1995. 49
Huffington Post, U.S. Military Heat Ray Weapon Unveiled, Mar. 13, 2012 available at http://www.huffingtonpost.ca/2012/03/13/us-military-heat-ray-weapon_n_1343092.html. 50
U.S. Naval Research Laboratory, Incoherent Combining of Fiber Lasers Developed for Directed Energy Applications, June 10, 2013 available at http://www.nrl.navy.mil/media/news-releases/2013/incoherent-combining-of-fiber-lasers-developed-for-directed-energy-applications; Brian Bergstein, Military Mulls Use of ‘Star Trek’ Weapons, Live Science, July 13, 2005 available at http://www.livescience.com/309-military-mulls-star-trek-weapons.html. 51
Nicco Mele, Anonymous takes charge, the Web takes down governments, Salon, May 5, 2013 available at http://www.salon.com/2013/05/05/anonymous_takes_charge_the_web_takes_down_governments/. 52
Office of the Secretary of Defense, Annual Report to Congress: Military and Security Developments involving the People’s Republic of China 2013, 2013 available at http://www.defense.gov/pubs/2013_china_report_final.pdf; Info Security, Taiwan: Chinese cyber-army swells to 100K, hits Taipei hundreds of times per day, Apr. 30, 2013 available at http://www.infosecurity-magazine.com/view/32116/taiwan-chinese-cyberarmy-swells-to-100k-hits-taipei-hundreds-of-times-per-day/. 53
David E. Sanger, U.S. Blames China’s Military Directly for Cyberattacks, New York Times, May 6, 2013 available at http://www.nytimes.com/2013/05/07/world/asia/us-accuses-chinas-military-in-cyberattacks.html?google_editors_picks=true&_r=0. 54
CNN, May 28 (Rep. Mike Roberts (R-Mich.) says US engaged in #cyberwar with Chinese on @CNN after US
hacked, accessing advanced weapon systems.)(Notes with author); CBS News, China cyber spies access major U.S.
weapons system, report says, May 28, 2013 available at
http://m.cbsnews.com/fullstory.rbml?&catid=57586367&feed_id=30&videofeed=null 55
Richard A. Clarke and Robert K. Knake, “Cyber War”, HarperCollins, 2010. 56
Id. 57
David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran, New York Times, June 1, 2012 available at http://www.nytimes.com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?pagewanted=all. 58
Natasha Lennard, Anonymous hits Israel over Gaza strikes, Salon, Apr. 7, 2013 available at http://www.salon.com/2013/04/07/anonymous_hits_israel_over_gaza_strikes/. 59
Harold Koh, “International Law in Cyberspace” USCYBERCOM Inter-Agency Legal Conference, Ft. Meade, MD, Sept. 18, 2012, transcript available at http://opiniojuris.org/2012/09/19/harold-koh-on-international-law-in-cyberspace/?utm_source=rss&utm_medium=rss&utm_campaign=harold-koh-on-international-law-in-cyberspace. 60
International Committee of the Red Cross, States Party to the Main Treaties, Aug. 20, 2012 available at http://www.icrc.org/eng/resources/documents/misc/party_main_treaties.htm.
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