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

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(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

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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

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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.

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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

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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

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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

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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.

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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.

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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)

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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

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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.