The Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?

In: Max Planck Yearbook of United Nations Law Online

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  • * I am grateful to Thomas Mensah, Judge at the International Tribunal for the Law of the Sea, for his valuable recommendations. 1 WM. Reisman, "Assessing Claims to Revise the Laws of War", AJIL 97 (2003), 82 et seq.

  • 2 J.A. Frowein, "1st das Volkerrecht tot?", Frankfurter Allgemeine Zeitung of 23 July 2003, 6. 3 See amongst others J.R. Bolton, "Is there Really "Law" in International Affairs", T'ransnat'l L. �.Contemp. Probs 10 (2000), 1 et seq.; R. Kagan, "Power and Weakness", Policy Review No. 113. 4 J. Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5th edition 1911, in particular Lecture VI; see on that M. Koskenniemi, The Gentle Civilizer of Nations, 2002. 5 Quite some research has been undertaken on this issue; see for example: E. Brown-Weiss/ H.K. Jacobsen, Engaging Countries, 1998; R. Wolfrum, "Means of Ensuring Compliance with and Enforcement of International Environmental Law", RdC 272 (1998), 25 et seq., both with further refer- ences and on the enforcement of international law in general. A more gen- eral inquiry on the issue of compliance or non compliance of states with their international obligations has been undertaken by A. Charles/ A.H. Chayes, The New Sovereignty, 1995, critical in this respect L.F. Damrosch, "The Permanent Five as Enforcers of Controls on Weapons of Mass De- struction : Building on the Iraq 'Precedent'", EJIL 13 (2002), 305 et seq.; she argues that only enforcement measures will prove to be effective.

  • 6 There is an overwhelming literature dealing with the international prohibi- tion of the use of force in particular. See for example: C. Antonopoulos, The Unilateral Use of Force by States in International Law, 1997; B. Asrat, Prohibition of Force under the UN Charter. A Study of Art. 2 (4), 1991; D.W Bowett, Self-Defence in International Law, 1958; I. Brownlie, Inter- national Law and the Use of Force by States, 1963; J. Delbruck, "Effektivi- tat des U1V-Gewaltverbots: Bedarf es einer Modifikation der Reichweite des Art. 2 (4) UN Charta", Die Friedenswarte 74 (1999), 139 et seq.; Y. Dinstein, War, Aggression and Self Defence, 3rd edition 2001; T.M. Franck, "Who killed Art. 2 (4), or: The Changing Norms Governing the Use of

  • Force by States", AJIL 64 (1970), 809 et seq.; T.M. Franck, "When, If Ever, May States Deploy Military Force Without Prior Security Council Authorisation", Singapore Journal of International and Comparative Law 4 (2000), 362 et seq.; T.M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, 2002; C. Gray, International Law and the Use of Force, 2000; S. Khare, Use of Force under the UN Charter, 1985; H. Neuhold, Internationale Konflikte - Verbotene und erlaubte Mittel ihrer Austragung, 1977; D. Schindler, "Die Grenzen des v6lkerrechtlichen Ge- waltverbots", Reports of the DGVR 26 (1986), 11 et seq.; S.M. Schwebel, "Aggression, Intervention and Self-Defence in International Law", RdC 136 (1972), 411 et seq.; A. Randelzhofer, "Art. 2 (4)", in: B. Simma (ed.), The Charter of the United Nations, 2nd edition, 2002; J. Zourek, L'interdiction de l'emploi de la force en droit international, 1974; R. Miiller- son, "Jus ad bellum: Plus qua change (le monde) plus c'est la meme chose (le droit)", Journal of Conflict and Security Law 7 (2002), 149 et seq. 7 See in this respect for example: G. Dahm/ J. Delbriick/ R. Wolfrum, V61- kerrecht 113, 2002, 816 et seq. 8 Franck, Recourse to Force, see note 6, 12 points out that the obligation to respect the territorial integrity or political independence of any state was meant to strengthen the obligation under Article 2 (4) UN Charter. Any attempt to exclude minor military action from the ambit of that provision is therefore incongruent with the intent of the drafters of this provision. 9 See L. Goodrich/ E. Hambro, Charter of the United Nations: Commentary and Documents, 2nd edition, 1949, 22. 10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986 , 14 et seq. (99, para. 188). 11 ICJ, see above; Dinstein, see note 6, 93 et seq.; M.N. Schmitt, "Pre-emptive Strategies in International Law", Mich. J. Int'l L. 24 (2003) 513 et seq. (525).

  • 12 LNTS Vol. 94 No. 2137 General Treaty for the Renunciation of War as an Instrument of National Policy. The Pact provided the legal basis for multi- ple bilateral non-aggression pacts, for example: between Germany and Luxembourg (11 September 1929), Germany and the Kingdom of Den- mark (31 May 1939) and Germany and the USSR (23 August 1929). The violation of these agreements provided a basis for charges at the Nurem- berg Trials. The Kellogg-Briand Pact is still considered to be in force; Bar- bados (30 November 1966), Fiji (10 October 1970) and Grenada (7 Febru- ary 1974) have declared to further apply it. 13 The system of the League of Nations constituted the first attempt under modern international law to limit the right of states to have recourse to war. Article 15 of the Covenant of the League of Nations of 1919 obliged states not to resort to war as long as a dispute was under consideration by the Council of the League of Nations. Once the process set into motion had failed to produce an amicable settlement the parties of the conflict remained free "to take such action as they shall consider necessary for the maintenance of right and justice''. In the period between the wars multilateral treaties at- tempted to further limit the possibility of states to have recourse to war. For example, according to article 2 of the Locarno Treaty (Treaty of Mutual Guarantee) of 16 October 1925 (LNTS Vol. 54 No. 1292), the States parties to that treaty undertook "... in no case [to] attack or invade each other or to resort to war ...". Another example to that extent is the Anti War Treaty of 10 October 1933 (LNTS Vol. 163 No. 3781). 14 See, for example, the statement of the Permanent Representative of Austra- lia in the Security Council, Doc. S/PV 4726 of 26 March 2003, 27; on the validity of that argument see below.

  • 15 Definition of Aggression A/RES/3314 (XXIX) of 14 December 1974; A/RES/2625 (XXV) of 24 October 1970 (Declaration on Principles of In- ternational Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations; A/RES/42/22 (1987) of 18 November 1987 (Refraining from the Threat or Use of Force); T. Treves, "La Declaration des Nations Unies sur la renfor- cement de 1'efficacit6 du principe du non recours a la force", A.F.D.I. 33 (1987) 379 et seq., points out that this resolution does not make a respective attempt to deal with controversial issues. 16 C. Tomuschat, "Der 11. September 2001 und seine rechtlichen Folgen", EuGR2 28 (2001), 535 et seq. (536); F.L. Kirgis, "Security Council adopts Resolution in Combating International Terrorism", ASIL Insight 2001; J. Cerone, "Acts of War and State Responsibility in 'Muddy Waters': The Non-state Actor Dilemma", ASIL Insight 2001; R. Wolfrum/ C. Philipp, "The Status of the Taliban: Their Obligations and Rights under Interna- tional Law", Max Planck UNYB 6 (2002), 559 et seq. (588). 17 See below. 18 See below.

  • 19 See in particular on this R.J. Dupuy, "Communaute international et dispa- rite de developpent", RdC 165 (1979), 21 et seq.; G. Abi-Saab, "Whither the International Community", EJIL 9 (1998), 248 et seq.; C. Tomuschat, "Die Internationale Gemeinschaft", AVR 33 (1995), 1 et seq.; A.L. Paulus, Die Internationale Gemeinschaft im Volkerrecht - Eine Untersuchung zur Entwicklung des Volkerrechts im Zeitalter der Globalisierung, 2001; B. Simma/ A.L. Paulus, "The 'International Community': Facing the Chal- lenge of Globalization", EJIL 9 (1998), 266 et seq.; J.A. Frowein, "Konsti- tutionalisierung des V61kerrechts", Reports of the DGVR 39 (2000), 427 et seq.; C. Walter, "Constitutionalizing (Inter)national Governance: Possibili- ties for and Limits to the Development of an International Constitutional Law", GYIL 44 (2001), 170 et seq.; Dahm/ Delbriick/ Wolfrum, see note 7, 776 et seq. 20 O. Schachter, "The Decline of the Nation-state and its Impact for Interna- tional Law", in: J.I. Charney/ D.K. Anton/ M.E. O'Connell, Politics, Val- ues and Functions: International Law in the 2lst Century, 1997, 13 et seq. (19).

  • 21 San Remo Manual Applicable to Armed Conflict at Sea 22 B.D. Lepard, Rethinking Humanitarian Intervention, 2002, 39 et seq. 23 "The High Contacting Parties solemnly declare in the names of their re- spective peoples that they condemn recourse to war for the solution of in-

  • ternational controversies, and renounce it, as an instrument of national policy in the relations with one another". 24 See letter of 20 March 2003 from the Permanent Representative of Austra- lia to the United Nations addressed to the President of the Security Coun- cil (Doc. S/2003/350 of 20 March 2003; "... The objective of the action is to secure compliance by Iraq with its disarmament obligations as laid down by the Council ..."; in this respect, an identical letter has been sent by the Permanent Representative of the United Kingdom (Doc. S/2003/350 of 21 March 2003).

  • 25 M,J, Glennon, "Why the Security Council failed", Foreign Aff. 8 (2003), 16 et seq. (21). 26 For that reason the statement of Schmitt, see note 11, 527, that a threat to peace is what the Security Council declares as such, disregards the inherent limitations of the Security Council under Chapter VII UN Charter. 27 S/RES/1440 (2002) of 24 October 2002. 28 S/RES/1438 (2002) of 14 October 2002.

  • 29 S/RES/748 (1992) of 31 March 1991. 30 See J.A. Frowein/ N. Krisch, "Art. 42", MN 20-24, in: Simma, see note 6. 31 S/RES/83 (1950) of 27 June 1950; S/RES/82 (1950) of 25 June 1950 had al- ready stated that there had been a breach of peace and thus invoked Article 39 UN Charter. Frowein/ Krisch, see above, MN 21 take the view that the respective action of the Security Council was merely a recommendation to use self defence.

  • 3z S/RES/143 (1960) of 14 July 1960. 33 S/RES/221 (1966) of 9 April 1966; S/RES/232 (1966) of 16 December 1966. 34 S/RES/678 (1990) of 29 November 1990; "2. Authorizes Member States co- operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the fore- going resolutions, to use all necessary means to uphold and implement Se- curity Council resolution 660 (1990) and all subsequent relevant resolu- tions and to restore international peace and security in the area." 35 S/RES/940 (1994) of 31 July 1994. 36 S/RES/794 (1992) of 3 December 1992. 37 S/RES/1386 (2001) of 20 December 2001. 38 This has been highlighted by Franck, Recourse to Force, see note 6, 27.

  • 39 See note 36. 40 See S/RES/678 (1990) of 29 November 1990. al Frowein/ Krisch, see note 30, MN 25 argue that the UN Charter favours centralized enforcement and thus the Security Council should be in full control of the action. The reality, though, is different.

  • 42 Doc. S/PV 4707 of 14 February 2003; Doc. S/PV 4701 of 5 February 2003. 43 See letter of the Permanent Representative of the United Kingdom to the United Nations of 20 March 2003 (Doc. S/2003/350 of 21 March 2003). 44 Letter of the Permanent Representative of the United States to the Security Council of 20 March 2003 (Doc. S/2003/351 of 21 March 2003). as S/RES/687 (1991) of 3 April 1991, paras 7 to 14. 46 S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/686 (1991) of 2 March 1991, S/RES/687 (1991) of 3 April and S/RES/1284 (1999) of 17 December 1999.

  • 47 S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/687 (1991) of 3 April 1991. 48 S/RES/1441 (2002) of 8 November 2002 in connection with S/RES/688 (1991) of 5 April 1991.

  • 49 It is doubtful whether it is fully justified to quote the decisions of the Secu- rity Council in this respect. Its determination that the situations in South Rhodesia and in South Africa constituted threats to the international peace and security may primarily have been motivated by the destabilizing effect these regimes had on neighbouring countries; see Frowein/ Krisch, "Art. 39", MN 19 and 20, in: Simma, see note 6. 50 See the assessment of H. Gading, Der Schutz grundlegender Menschen- rechte durch militdrische Maf3nahmen des Sicherheitsrates - das Ende staat- licher Souverdnitdt?, 1996, 91 et seq.; S.D. Murphy, Humanitarian Inter- vention, 1996, 145 et seq.; S. Chesterman, just War or Just Peace? Hu- manitarian Intervention in International Law, 2001, 14 et seq. Critical also M.J. Glennon, Limits of Law, Prerogatives of Power, Interventionism after Kosovo, 2001, 120; in favour of a more flexible interpretation of the respec- tive provisions of the Charter, see Miillerson, see note 6, 171. 51 Gading, see above, 165 et seq.; B. Conforti, The Law and Practice of the United Nations, 2nd edition, 2000, 177; sceptical Frowein/ Krisch, see note 49, 21 who argue that it is not for the Security Council to enforce all over- arching values of the international community; but this is not to say that the Security Council has no scope of action at all in this regard. 52 S/RES/731 (1992) of 21 January 1992; S/RES/1044 (1996) of 31 January 1996; S/RES/1054 (1996) of 26 April 1996 (Sudan); S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000 (Afghanistan).

  • 53 See S/RES/940 (1994) of 31 July 1994 (Haiti); S/RES/678 (1990) of 29 No- vember 1990 (Iraq); S/RES/794 (1992) of 3 December 1992 (Somalia). 54 See the draft offered by the United States, United Kingdom and Spain on 24 February 2003 (http://usinfo.stategov/topical/pol/arms/03022410.htm) and the one on 3 March 2003 (http://www.msnbc.com/news/87601.asp).

  • 55 Para. 33, see note 59, below. 56 The first operative paragraph reads: "Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of the pres- ent resolution, including a formal cease-fire; ....". 57 Third pre-ambular paragraph. 58 See operative paras 1 and 2 of that resolution. A different position has been taken in the Written Answer of the Attorney General, Lord Goldsmith, to a Parliamentary Question on the legal basis for the use of force in Iraq. See also letter by the Permanent Representative of the United Kingdom to the Security Council Doc. S/2003/350 of 21 March 2003. It is worth noting that the justification of the United Kingdom differed from that of the United States which also invoked self-defence (see letter of the Permanent Representative of the United States to the Security Council, Doc. S/2003/351 of 21 March 2003). 59 Para. 33 of S/RES/687 reads: "Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990)." 60 In a statement of 14 January 1993 it was said that: "... the raid and the forces that carried out the raid, have received a mandate from the Security

  • Council, according to Resolution 687, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the cease-fire. I, as Secre- tary-General of the United Nations, I can say this action was taken and conforms to the resolutions of the Security Council and conformed to the Charter of the United Nations ...". 61 See e.g. Introduction, in: M.W/ A.R. Willard, International Incidents, 1988. 62 R. Jennings/ A. Watts (eds), Oppenheim's International Law, 1992, 1305 et seq.; Dahm/ Delbriick/ Wolfrum, see note 7, 743 et seq. 63 Reisman, see note 1, 83.

  • 64 See also T. Farer, "Humanitarian Intervention before and after 9/11: Legal- ity and Legitimacy", in: J.L. Holzgrefe/ R.O. Keohane, (eds), Humanitar- ian Intervention, Ethical, Legal and Political Dilemmas, 2002, 53 et seq. (65). 65 See J.L. Holzgrefe, "The Human International Debate", in: Holzgrefe/ Keohane, see above, 18.

  • 66 Dahm/ Delbriick/ Wolfrum, see note 7, 826 et seq.; Dinstein, see note 6, 66; Franck, Recourse to Force, see note 6, 138. 67 Different M.J. Glennon, "The New Interventionism: The Search for a Just International Law", Foreign Aff. 78 (1999), 2 et seq. 68 Delbriick, see note 6, 152; K. Doehring (ed.), V61kerrecht, 1999, 435. 69 Doehring, see above, 435; R. Wedgwood, "NATO's Campaign in Yugosla- via", AJIL 93 (1999), 828 et seq. (833). 70 P. Hilpold, "Humanitarian Intervention: Is There a Need for a Legal Reap- praisal ?", EJIL 12 (2001), 437 et seq. (450 et seq.); J. Duursma, "Justifying NATO's Use of Force in Kosovo", LJIL 12 (1999), 287 et seq.; L. Henkin, "Editorial Comments: NATO's Kosovo Intervention: Kosovo and the Law of 'Humanitarian Intervention'", AJIL 93 (1999), 824 et seq. (825 et seq.). 71 T.M. Franck/ N.S. Rodley, "After Bangladesh: The Law of Humanitarian Intervention by Military Force", AJIL 67 (1973), 275 et seq. (299-302); in the United Nations neither in the Security Council nor in the General As- sembly India's claim that its military intervention was prompted by human rights concerns was accepted. 72 This intervention was ignored by the Security Council. 73 For an assessment see Franck, Recourse to Force, see note 6, 152-153.

  • 74 K. Nowrot/ E.W Schabacker, "The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone", Am. U. Int'l L. Rev. 14 (1998/99), 321 et seq. (411). 75 See in particular A/RES/34/22 of 14 November 1979 which clearly con- demned the intervention of Vietnam. This resolution is similar to the one which the USSR had vetoed in the Security Council; for an assessment see Franck, Recourse to Force, see note 6, 145 et seq. 76 H.P Neuhold, "Die Operation 'Allied Forces' der NATO: Rechtmaf3ige humanitare Intervention oder politisch vertretbarer Rechtsbruch", in: E. Reiter (ed.), Der Krieg um das Kosovo 1998/1999, 2000, 193 et seq.; Dahm/ Delbruck/ Wolfrum, see note 7, 828 et seq.; A. Cassese, "Ex iniuria ius oritur: We are Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?," EJIL 10 (1999), 23 et seq.; Henkin, see note 70, 825; different B. Simma, "NATO, the UN and the Use of Force: Legal Aspects", EJIL 10 (1999), 1 et seq. Ac- cording to Schmitt, see note 11, 532 the action of NATO was justified in spite of the lack of authorization of the Security Council since it was evi- dent that - due to the fact of the objection by Russia - no affirmative deci- sion of the Security Council could have been achieved. On the debate in the Security Council see Lepard, see note 22, 339 et seq.

  • 77 W M. Reisman/ M. McDougal, "Humanitarian Intervention to Protect the Ibos", in: R.B. Lillich (ed.), Humanitarian Interuention and the United Nations, 1973, 167 et seq. (175).

  • 78 "To those for whom the greatest threat to the future of the international order is the use of force in the absence of a Security Council mandate , one might ask, not in the context of Kosovo but in the context of Rwanda, if in those days ... leading up to genocide, a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt Coun- cil authorisation, should such coalition have stood aside and allow the hor- ror to unfold? To those for whom the Kosovo action heralded a new era when states and groups of states can take military action outside the estab- lished mechanisms for enforcing international law, one may ask: is there not a danger of such intervention undermining the imperfect, yet resilient, security system created after the Second World War ..." (GAOR 54 Sess., 4th Plenary Mtg of 20 September 1999, 2, Doc. A/54/PV.4). 79 WM. Reisman, "Unilateral Action and the Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention", EJIL 11 (2000), 3 et seq. (15).

  • 80 See in this respect the statements of the Non-Aligned Summit in 1999 and the Group of 77 meeting in 2000. In both statements the formula was used: ... We reject the so-called, 'right of humanitarian intervention' which has no legal basis in the UN Charter or in the general principles of interna- tional law ..."; see 81 Farer, see note 64, 78. 82 Farer, see note 64, 77 et seq.; different Reisman, see note 79, 16 who seems to presume that democratic institutions and non-governmental forces will be a sufficient threshold against such misuse. The interventions in Panama and in Granada are, however, not encouraging in this respect.

  • 83 See in particular the letter dated 20 March 2003 of the Permanent Repre- sentative of the United States to the Security Council Doc. S/2003/351 of 21 March 2003. The respective text reads: "The actions ... are necessary steps to defend the United States and the international community from the threat posed by Iraq and to restore international peace and security in the area ...". Different Frowein, see note 2, for whom the United States mainly tried to justify its attack on Iraq by reference to the respective Secu- rity Council Resolutions. 84 Its relevant part reads: "... to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to ... defend the na- tional security of the United States against the continuing threat posed by Iraq; and ... enforce all relevant Security Council resolutions regarding Iraq ..." (Pub. L No.107-243, 116 Stat.1498, 1501 (2002). 85 An extended interpretation of the notion of self-defence had been advo- cated by Wolfowitz already in 1992 in his study Defence Planning Guid- ance. � ^ 7

  • 86 Dinstein, see note 6, 165; Bowett, see note 6, 187 et seq.; J. Stone, Aggres- sion and World Order. A Critique of United Nations Theories of Aggres- sion, 1958, 44. 87 Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (263, para. 96). 88 Dinstein, see note 6, 159. 89 As to the violation of which rights may justify self-defence see A. Randelz- hofer, "Art. 51 ", MN 4 et seq., in: Simma, see note 6; Franck, Recourse to Force, see note 6, 45 et seq.

  • 90 Dinstein, see note 6, 166, 167. 91 Dinstein, see note 6, 160, 161 rightly points out that the right of self- defence could only develop in the context of the development of a prohibi- tion of the unilateral use of force. 92 J. Zourek, L'interdiction de l'emploi de la force en droit international, 1974; different, Dissenting Opinion of Judge Schwebel, Nicaragua case, see note 10, 347-348 (para. 173). 93 Minutes of the 48th Mtg (Executive Session) of the United States Delega- tion, held at San Francisco, Sunday, May 20, 1945, Foreign Relations of the United States Vol. 1 (1945), 813 et seq. (818). ' 94 UNCIO Oaks Proposals, in: UN Information Organization (ed.), Docu- ments of the UN Conference on International Organization, San Francisco, 1945, Vol. III: Dumbarton Oaks Proposals, Comments and Proposed Amendments, 1945. 95 Franck, Recourse to Force, see note 6, 48.

  • 96 Bowett, see note 6, 185, 186; Oppenheim's International Law, see note 62, 420; Reisman, see note 1, 82; different Dinstein, see note 6, 168 et seq. In the Nicaragua Case, see note 10, the ICJ, although dealing with the right to self-defence under customary international law, passed no judgment on the issue of lawfulness of a response to the imminent threat of armed attack, 103 (para. 194). 97 The terminology is not always fully coherent; Reisman, see note 1, 87, for example seems to use anticipatory and preventive self-defence inter- changeably, also pre-emptive self-defence allegedly has a preventive objec- tive. 98 US Secretary of State Daniel Webster argued that for self-defence to be le- gitimate the British had to demonstrate that a '`necessity of self-defence, in- stant, overwhelming leaving no choice of means, and no moment for delib- eration" and that the acts would not be "unreasonable or excessive". (Let- ter from Daniel Webster, Secretary of State of the United States, to Henry S. Fox, Envoy Extraordinary and Minister Plenipotentiary of Her Britan- nic Majesty (24 April 1841), reprinted in British and Foreign State Papers 19 (1857), 1129 et seq. (1138).

  • 99 Reisman, see note 1, 87 even seems to favour a somewhat broader scope. 100 Legality of the Threat or Use of Nuclear Weapons, see note 87, (245); Din- stein, see note 6, 183. lol Part II deals with terrorism. There it is stated: "... The struggle against global terrorism is different from any other war in our history. It will be fought on many fronts against a particularly elusive enemy over an ex- tended period of time ...[D]efending the United States, the American peo- ple, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right to self-defence by acting pre-emptively against such terrorists, to prevent them from doing harm against our people and our country ..." Part V focuses on the prolif- eration of weapons of mass destruction: The respective part thereof states: "... But new deadly challenges have emerged from rogue states and terror- ists. None of these contemporary threats rival the sheer destructive power that was arrayed against us by the Soviet Union. However, the nature and motivations of these new adversaries, their determination to obtain de- structive powers hitherto available only to the world's strongest states, and the greater likelihood that they will use weapons of mass destruction against us, make today's security environment more complex and danger- ous ... Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocent; whose so-called soldiers seek martyrdom in death and whose

  • most potent protection is statelessness ... The United States has long main- tained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inac- tion - and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively. (White House, The National Security Strategy of the United States of America (2002), available at . See in this respect also the article by P. Minnerop in this Volume. 102 S/RES/487 (1981) of 19 June 1981. 103 Reisman, see note 1, 88 argues this view should be reconsidered; different Dinstein, see note 6, 169. According to him the attack was justifiable through the fact that Israel was at war with Iraq at that moment.

  • 104 Considering such attack as self-defence, Schmitt, see note 11, 1535; A. D'Amato, "Israel's Air Strike upon the Iraqi Nuclear Reactor", AJIL 77 (1983), 584 et seq. (588); T.L.H. McCormack, Self Defence in International Law: The Israeli Raid on the Iraqi Nuclear Reactor, 1996, 205 et seq. 105 Dinstein, see note 6, 168, 169; Franck, Recourse to Force, see note 6, 104, 105 although pointing out that Israel had not exhausted its diplomatic remedies; Oppenheim's International Law, see note 62, refers in this con- text to necessity and proportionality as limiting factors.

  • 106 Reisman, see note 1, 89 seems to argue that point. 107 See J.N. Moore, "Solving the War Puzzle", AJIL 97 (2003), 282 et seq. (283 et seq.).

  • 108 �en the Security Council referred to the inherent right of individual and collective self-defence of the United States in respect of terrorist attacks of September 11, 2001 in its resolutions S/RES/1368 (2001) of 12 September 2001 and S/RES/1373 (2001) of 28 September 2001 it did not name the pos- sible target of actions of self-defence. In the latter resolution the Security Council reaffirmed the need "... to combat by all means in accordance with the Charter of the United Nations, threats to international peace and secu- rity caused by terrorist activities ...". See on this issue Wolfrum/ Philipp, see note 16, 586 et seq. It has been argued that the Security Council in resolutions 1368 and 1373 only referred to self-defence in their pre- ambular paragraphs and that this could not be taken as an acknowledge- ment of a situation of self defence, E.PJ. Myjer/ N.D. White; "The Twin Towers Attack: An unlimited Right to Self-Defence?, Journal of Conflict and Security Law 7 (2002), 5 et seq. (17); different Miillerson, see note 6, 175. to9 A/RES/3314 (XXIX) of 14 December 1974. ilo Pointed out by C. Stahn, "International Law at a Crossroads? The Impact of September 11", ZaoRV 62 (2002), 183 et seq.

  • 111 S/RES/1373 (2001) of 28 September 2001 has qualified the attack of Sep- tember 11, 2001 as threat to international peace and security and has reaf- firmed the inherent right of the United States to self-defence. 112 Tomuschat, see note 16, 540; Randelzhofer, see note 89, 51, MN 34, in: Simma, see note 6, takes an intermediate position: "Acts of terrorism com- mitted by private groups or organizations as such are not armed attacks in the meaning of Article 51 of the UN Charter. But if large scale acts of ter- rorism of private groups are attributable to a state they are an armed attack in the sense of Article 51"; different A. Pellet, "No, This is not War!", available under ; P.M. Dupuy, "The Law after the Destruction of the Towers", available under . 113 Wolfrum/ Philipp, see note 16, 590. 114 Tomuschat, see note 16, 535, 536. 115 Different L. Condorelli, "The Imputability to States of Acts of Interna- tional Terrorism", Isr. Y. B. Hum. Rts 19 (1989), 233 et seq. (240); Stahn,

  • see note 110, 30 is quite doubtful whether one may have recourse to the re- gime on state responsibility in the context of self-defence. 116 Wolfrum/ Philipp, see note 16, 594 et seq. m See J. Crawford, The International Law Commission's Articles on State Responsibility, 2002, 149. 118 See on this Wolfrum/ Philipp, see note 16, 567 et seq.

  • 119 Wolfrum/ Philipp, see note 16, 595 et seq.; Mullerson, see note 6, 185 comes to the same conclusion with a slightly different reasoning. tzo The Security Council had already requested that in 1998 and 1999, S/RES/1214 (1998) of 8 December 1998 and S/RES/1267 (1999) of 15 Oc- tober 1999. t2t S/RES/1214 (1998) of 8 December 1998; S/RES/1267 (1999) of 15 October 1999. The latter having been adopted under Chapter VII of the UN Char- ter. 122 S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 Decem- ber 2000.

  • 1� See I. Detter, The Law of War, 2nd edition, 2000, 164 et seq.; R.C. Algase, "Protection of Civilian Lives in Warfare: A Comparison between Islamic Law and Modern International Law Concerning the Conduct of Hostili- ties", Military Law and Law of War Review 16 (1977), 246 et seq. 124 see in particular B. Roben, Johann Caspar Bluntschli, Francis Lieber und das moderne Volkerrecht 1861-1881, 2003, 198 et seq. 125 R.S. Hartigan, Lieber's Code and the Law of War, 1983, 1 et seq.; B.M.L. Carnahan, "Lieber and the Laws of Wan The Origins and Limits of Mili- tary Necessity", AJIL 92 (1998), 213 et seq.; G. Fahl, Humanitilres Volker- recht, 1983, 19 refers to a regulation on war issued by Czar Peter I of 30 March 1716. See also S. Voneky, "Der Lieber's Code und die Wurzeln des modernen Kriegsv6lkerrechts-, ZadRV 62 (2002), 423 et seq. 126 The historical development of the law in armed conflict is briefly summa- rized in H. McConbrey/ N.D.White, International Law and Armed Con- flict, 1992, 209 et seq.

  • 12� Annex to the Convention (IV) Respecting the Laws and Customs of War on Land, Martens NRG 3eme serie, Volume III, 461 et seq. 128 Convention I for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field; Convention II for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Con- vention III relative to the Treatment of Prisoners of War; Convention IV relative to the Protection of Civilian Persons in Time of War. (all reprinted in D. Schindler/ J. Toman, The Laws of Armed Conflicts, 1988). 129 ILM 16 (1977), 1391 et seq. iso ILM 16 (1977), 1442 et seq. 131 Convention on Prohibitions or Restrictions on the Use of Certain Con- ventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, ILM 19 (1980), 1523 et seq.

  • 132 Convention on the Prohibition of the Development, Production, Stock- piling and Use of Chemical Weapons and on their Destruction, ILM 32 (1993), 800 et seq. 133 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby- Traps and other Devices (Protocol II) as amended, ILM 35 (1996), 1206 et seq. 134 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and on their Destruction, ILM 36 (1997), 1507 et seq. 13s The Appeals Chamber stated: "[E]lementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when states try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife ...'' (Prosecutor v. Tadic, (Decision on the Defence Motion for Interlocutory Appeal on Juris- diction), ILM 35 (1996), 35 et seq. (68, para. 119); reiterated in the Judg- ment Prosecutor v. Enver Had2ihasanovic, Mehmed Alagic Amir Kubura (Decision on Interlocutory Appeal) (Case IT-01-47 AR 72); the latter rightly pointed out that the applicability of rules for the international armed conflicts to the non-international armed conflict has to be estab- lished for each issue and this cannot be done so in general (para. 12). In doing so the Tribunal not only considers state practice but in particular

  • whether the situations are analogous. F. Kalshoven, "Arms, Armaments and International Law", RdC 191 (1985), 183 et seq. (296) came to the same conclusion by pointing out that under customary international law states were under an obligation to spare civilians and civilian objects in internal conflicts. C. Greenwood, "The Law of Weaponry at the Start of the New Millennium", in: M.N. Schmitt/ L.C. Green (eds), The Law of Armed Conflict into the Next Millennium, International Law Studies Volume 71, 1998, 185 et seq. (193) questions whether there is enough evidence for cus- tomary international law in this respect but considers the argument ad- vanced by the Appeals Chamber as compelling. i36 See on this Greenwood, see above, 193. �3� See in this respect the Separate and Partially Dissenting Opinion of Judge David Hunt in the Case Prosecutor v. Hadzihasanovic et al., see note 135, concerning the question of content and scope of command responsibility.

  • 138 Greenwood, see note 135, 185 points out that developments of weaponry and methods of warfare during the twentieth century have not been matched by the development of law; on the law of weaponry in general see Detter, see note 123, 211 et seq. 139 The basic rule in this respect is article 48 Additional Protocol I; it explicitly lays down the maxim of a 'limited warfare'. �4° S. Voneky, Die Fortgeltung des Umweltvolkerrechts in internationalen be- �affneten Konflikten, 2001, 29 et seq.; R.G. Tarasofsky, "Legal Protection of the Environment during International Armed Conflict", NYIL 24 (1993), 17 et seq.

  • 141 The notion of "attacks" is defined in article 49 Additional Protocol I. At- tacks are "acts of violence against the adversary, whether in offence or de- fence". The notion is narrower than the term "military operation" which also embraces military activities without direct use of violence. To the ex- tent that such operations do not lead to violence against the adversary the rules concerning the protection of civilians and civilian objects do not come into play; see S. Oeter, "Methods and Means of Combat", in: D. Fleck (ed.), Handbook of Humanitarian Law in Armed Conflicts, 1995, 105 et seq. (153, para. 441); WA. Solf, "Article 49-Definition of Attacks and Scope of Application", in: M. Bothe/ K.J. Partsch/ WA. Solf, New Rules for Victims of Arnzed Conflicts, 1982, 286 et seq., (289). 142 As to the historical development of this notion see: A.PV Rogers, Law on the Battlefield, 1996, 27 et seq.; Detter, see note 123, 280 et seq. referring to article 24 of the Hague Draft Rules of 1923 which clearly influenced the wording of article 52 Additional Protocol I. 143 Article 2 of Annex II and Annex III to the so called Conventional Weapons Convention, see note 132; this is equally true for the amended Protocol II of 1996. 1� The principle military targets have been traditionally enemy combatants which includes units of the army, the navy and the air force, guerrilla fight- ers, the civilian population of an invaded country taking part in hostilities (levee en masse). Already the Preamble of the Declaration of St. Petersburg of 1868 stated: "Considering ... that the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy; ....

  • 145 Article 49 (2) Additional Protocol I provides that the limitations on tar- geting and the use of weapons also applies to the territory of the belligerent undertaking the respective action but occupied by the adversary. These rules apply to land warfare as well as from the air and on the sea. 146 See arts 48 and 51 (2), 51 (3) and 52 (1) Additional Protocol I. 147 Article 51 (5) (b) Additional Protocol I; this is considered to be part of customary international law; Bothe/ Partsch/ Solf, see note 141, 299 con- sider the whole of article 51 Additional Protocol to be customary interna- tional law, so does the Comite International de la Croix-Rouge (ed.), Commentaire des Protocoles additionnels due 8 juin 1977, 1986, article 51, note 1923; H.B. Robertson, "The Principle of Military Objective in the Law of Armed Conflict", Journal of Legal Studies 8 (1997), 35 et seq.; points out that several operational manuals have copied article 52 (2) Addi- tional Protocol I. 148 Article 57 (3) Additional Protocol I; this, too, must be considered to be part of international customary law. Even if a different position is taken, see Rogers, see note 142, 43, the same result would have been achieved by invoking the principle of proportionality which clearly constitutes part of customary international law, different also in this respect Rogers, see note 142, 43. 149 Article 52 (2) Additional Protocol I.

  • i5o Comite International de la Croix-Rouge, see note 147, article 52, note 2024; Bothe/ Partsch/ Solf, see note 141, 326. 151 Rogers, see note 142, 42 et seq. i52 C. Greenwood, "Customary International Law and the I. Geneva Protocol of 1977 in the Gulf conflict", in: PJ. Rowe (ed.), The Gulf War 1990-91 in International and English Law, 1992, 63 et seq. (73). 153 Conduct of the Persian Gulf War, US Department of Defence, Final Report to Congress, April 1992, 95; an assessment is given by O. Schachter, "United Nations Law in the Gulf Conflict", AJIL (1991), 452 et seq. (466); G. Best, Law and War since 1945, 1994, 384; the list provided by Robert- son, see note 147, 35 et seq. also includes civil television and radio installa- tions since they could be used for Iraqi propaganda; critical R. Normand/ C. Jochnick, "The Legitimization of Violence: A Critical History of the Laws of War", Harv. Int'l L. J. 35 (1994), 387 et seq. (402).

  • 154 P. Hine, "Dispatch by the Joint Commander of Operation Granby", 2nd Suppl., London Gazette of 28 June 1991. 155 Robertson, see note 147, 35 et seq.

  • 156 Rogers, see note 142, 36; Bothe/ Partsch/ Solf, see note 141, 326. 157 Annotated Supplement to the Commander's Handbook on the Law of Na- val Operations, NWP 1-14MN (Formerly NWP 9 (Rev.A), MCWP 5-21, COMDTPUT P5800.7, para. 8.1.1. 158 go�e/ Partsch/ Solf, see note 141, 326. ls9 Quoted from Oeter, see note 141, para. 444, this declaration was in fact made in connection with proportionality; a similar declaration was made by the United Kingdom at signature, text in: Bothe/ Partsch/ Solf, see note 141,721.

  • 160 See article 37 of the Code. 161 Greenwood, see note 135, 200.

  • 162 Oeter, see note 141, para. 455. 163 Oeter, see note 141, para. 455; Bothe/ Partsch/ Solf, see note 141, 305. 164 Article 57 (2) (a) (ii) Additional Protocol I.

  • 165 Reprinted in: A. Roberts/ R. Guelff, Documents on the Laws of War, 3rd edition, 2000, 561; G. Best, War and Law Since 1945, 1994, 273 points out that the rules on targeting have been followed in the 1991 war against Iraq being unclear whether the collapse of the inner Iraq's water-supply system was accidental or intentional.

  • 166 See statement by the U.S. Press Secretary, Washington D.C. of 7 February 2002; White House Fact Sheet of 7 February 2002, 1; see also G.A. Lopez, "The Style of the New War Making the Rules as We Go Along", Ethics & International Affairs 16 (2002), 21 et seq. (25); a different approach has been taken by the International Committee of the Red Cross, Press Release of 9 February 2002.

  • 167 See on this already Wolfrum/ Philipp, see note 16, 596 et seq. 168 Article 4 A (1). 169 See article 4 A (2) (a-d). 170 This distinction made in article 4 A of the Third Geneva Convention fol- lows in substance article 1 Hague Regulations; on the legislative history of article 4 Third Geneva Convention see: Final Record of the Diplomatic Conference of Geneva, 1949, Vol. II A, 465-467; A. Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applica- ble in Armed Conflicts, 1976, 328 et seq., gives a detailed analysis of this complex. See also: See G.H. Aldrich, "New Life for the Laws of War", AJIL 75 (1981), 764 et seq. (768 et seq.); A.P. Rubin, "Terrorism and the Laws of War", Den. J. Int'l L. fr Pol'y 12 (1983), 219 et seq. (222); different, Y Dinstein, "The Distinction between Unlawful Combatants and War Criminals", in: Y Dinstein (ed.), International Law at a Time of Perplexity, Essays in Honour of S. Rosenne, 1989, 103 et seq. (108).

  • 171 See in this respect Wolfrum/ Philipp, see note 16, 584 et seq. 172 C. Moore, "The United States, International Humanitarian Law and the Prisoners at Guantanamo Bay", International Journal of Human Rights 7 (2003), 1 et seq. (7).

  • 173 "Treatment as privileged, or unprivileged, belligerent cannot be at the pleasure of the capturer", House of Lords [Privy Council], Osman bin Haji Mohamed Ali v. Public Prosecutor [1969] 1 A.C. 430; see also M. Sas- soli/ A.A. Bouvier (eds), How Does Law Protect in War?, 1999, 767 et seq. On 12 March 2002 the Inter-American Commission called on the US gov- ernment "to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal". This was in response to a petition filed on 25 February 2002 by the Centre for Constitutional Rights, Columbia Law School and the Centre for Justice and International Law alleging violations of the United States obligations under the American Declaration on the Rights and Duties of Man in rela- tion to the Guantanamo detainees.

  • 174 C. Greenwood, "Customary Law Status of the 1977 Additional Protocols", in: T. Delissen (ed.), Humanitarian Law of Armed Conflict, Challenges Ahead, Essays in Honour of Frits Kalshoven, 1991, 100 et seq. 175 The International Criminal Tribunal for the former Yugoslavia has affirmed in the Clebici Judgment of 1998 that: "There is no gap between the Third and the Fourth Geneva Convention. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ..., he or she neces- sarily falls within the ambit of the Fourth Convention, provided that its article 4 requirements are satisfied". 176 Bothe/ Partsch/ Solf, see note 141, 246.

  • m For details see Bothe/ Partsch/ Solf, see note 141, 249 et seq.; Rosas, see note 170, 354. 1�8 F. Kalshoven/ L. Zegveld, Constraints on the Waging of War, 3rd edition, 2001, 61 emphasize that this provision was introduced with the objective to prevent a repetition of the practice of the Allied Powers with respect to war

  • criminals of the Axis Powers who have been denied some of these rights. See also J. Pictet (ed.), ICRC Commentary, Vol. III, Geneva Convention Relative to the Treatment of Prisoners of War, 1960, 413-416 giving a de- tailed analysis on the practice prevailing after World War II and the legisla- tive history of that provision. 179 International humanitarian law is lex specialis to international human rights law. Since members from the Taliban forces are covered by international humanitarian law whereas Al Qaeda is not (see above) both sets of rules are referred to here. Apart from that as the United States government denies to detainees in Guantanamo Bay the formal prisoner of war status it will have to meet international human rights standards. 180 A/RES/2200 A (XXI) of 16 December 1966. isi See article 2 (1) of the Covenant. 182 For a detailed analysis see M. Nowak, "Art. 14", in: id., U.N. Covenant on Civil and Political Rights, CCPR Commentary, 1993, para. 33 et seq. A comparative national and international law analysis on the right to a fair trial is provided for in D. Weissbrodt/ R. Wolfrum (eds.), The Right to a Fair Trial, 1997. 183 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57, 8333 of 16 November 2001.

  • 184 Department of Defence, Military Commission Order No. 1 of 21 March 2002 available at . 185 D.A. Mundis, "The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Attacks", AJIL 96 (2002), 320 et seq. (324). 186 US Congress has provided for the establishment of military commissions in article 21 of the Uniform Code of Military Justice (10 U.S.C. sec. 821).

  • 187 General Comment 13 (21), para. 4, Doc. CCPR/4/Add.l. Reprinted in Yearbook of the Human Rights Committee 1983-1984, Vol. II, 621-623. 188 Sec. 6 H (3) and (4) of the Military Commission Order No. 1, see note 184. 189 Sec. 6 H (3), see note 184. 190 Sec. 6 H (2) and (6), see note 184. 191 For details see Mundis, see note 185, 327.

  • 192 Article 42 Fourth Geneva Convention. i93 Article 78 Fourth Geneva Convention. 19a Y. Dinstein, "The International Law Status of the West-Bank and the Gaza Strip", Isr. Y. B. Hum. Rts 28 (1998), 37 et seq. correctly affirms that the re- spective international rules on humanitarian law are applicable for the ad- ministration of these areas by Israel. 19s The Nuremberg Trial had stated that the Hague Regulations constituted customary international law, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. XXII, 497. 196 Article 154 Fourth Geneva Convention states that it complements the Hague Regulations. This is underlined by M. Greenspan, The Modern Law

  • of Land Warfare, 1959, 213 whereas H.P. Gasser, "Protection of the Civil- ian Population", in: Fleck, see note 141, 209 et seq. (241) states that the dominant law is the Fourth Geneva Convention. For a comparison of the provisions of the Fourth Geneva Convention see, Pictet, see note 178, 614. 197 As to the application of general international human rights standards see J.A. Frowein, "The Relationship between Human Rights Regimes and Re- gimes of Belligerent Occupation", Isr. Y. B. Hum. Rts 28 (1998), 1 et seq. (9 et seq.). He points out that international humanitarian law is to be consid- ered as lex specialis. 198 C. Greenwwod, "The Administration of Occupied Territories in Interna- tional Law", in: E. Playfair (ed.), International Law and the Administration of Occupied Territories, 1992, 241 et seq. (243). 199 See article 42 Hague Regulations; this provision is supplemented by article 27 of the Fourth Geneva Convention.

  • 200 Dinstein, see note 194, 44-45. zot Pictet, see note 178, 43. 202 Article 43 Hague Regulations; this provision is supplemented by article 27 Fourth Geneva Convention which, in its last sentence, states that the occu- pying power may take such measures of control and security as may be necessary as a result of war. No further specification is provided for, leav-

  • ing it to the discretion of the occupying power which measures to chose. However, article 27 Fourth Geneva Convention contains certain restric- tions implementing the general obligation of humane treatment. Further re- strictions are contained in arts 41 to 43, 78 and 79 to 135. Apart from that, one may argue that law enforcement measures - different from fighting pockets of resistance where the laws of armed conflict apply - should be guided by the 1979 UN Code of Conduct for Law Enforcement Officials and the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 203 See in this respect also S/RES/1502 (2003) of 26 August 2003. 204 See above.

  • 205 ICRC Commentary, Vol. IV, see note 178, 335. 206 The occupying power is authorized under this rule to promulgate provi- sions, including penal ones, for its own protection. This covers all civilian and military organizations and assets which an occupying power normally maintains in occupied territories. The occupying power may use all means of communication, accordingly it may take appropriate regulatory and ex- ecutive measures for their protection. 207 Regulations issued by the occupying power falling under this category in- clude, amongst others, regulations concerning child welfare, labour, food, hygiene and public health; see Pictet, see note 178, 337.

  • 208 Article 56 Fourth Geneva Convention. 209 Article 55 Fourth Geneva Convention. 210 Article 60 Fourth Geneva Convention. 211 Article 5 para. 1, 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

  • 212 J. Toman, Protection of Cultural Property in the Event of Armed Conflict, 1996, 85; R. Wolfrum, "Protection of Cultural Property in Armed Con- flict", in: Y Dinstein (ed.), Isr. Y. B. Hum. Rts 32 (2003), 305 et seq. 213 Article 5 para. 2, 1954 Hague Convention, see note 211. 214 Section I, para. 3, Protocol for the Protection of Cultural Property in the Event of Armed Conflict. 215 Section I, para. 4, Protocol, see above. 216 Section II, para. 5, Protocol, see note 214. 217 Article 28 of the 1954 Hague Convention, see note 211.

  • 218 S/RES/1483 (2003) of 22 May 2003, paras 20 and 21. 219 For a survey see J. Chopra, "UN Civil Governance-in-Trust", in: T.G. Weiss (ed.), The United Nations and Civil Wars, 1995, 69 et seq.; S.R. Rat- ner, The UN Peacekeeping, 1996; more recently, J.A. Frowein, "Die Not- standsverwaltung von Gebieten durch die Vereinten Nationen", Festschrift fur W. Rudolf zum 70. Geburtstag, 2001, 43 et seq. ZZO C. Stahn, "International Territorial Administration in the former Yugosla- via : Origins, Developments and Challenges Ahead", Za6RV 61 (2001), 107 et seq. (131). 221 The earliest example to that extent is the taking over of the administration of West-Irian in 1962 which took place on a contractual basis rather than, later examples, on the basis of a resolution of the Security Council under Chapter VII, sometimes with the consent of the respective state sometimes without. Such consent is, from a legal point of view, unnecessary since the Security Council is exercising powers vested in it by the UN Charter, Frowein, see note 219, (44).

  • 222 In Cambodia the UN operation was governed by the Paris Agreement on a Comprehensive Political Settlement of the Cambodia Conflict of 23 Octo- ber 1991. According to article 6 of that Agreement the Supreme National Council delegated to the United Nations "... all powers necessary to the implementation of this Agreement, as described in Annex I ...". See on this agreement S.R. Ratner, "The Cambodia Settlement Agreements", AJIL 87 (1993), 1 et seq. 223 S/RES/1031 (1995) of 15 December 1995. 224 S/RES/1244 (1999) of 10 June 1999. The mandate is less explicit as in the case of East Timor but it is equally clear that the United Nations are taking over the civilian administration so as to provide for sustainable peace in this area. 22s S/RES/1272 (1999) of 25 October 1999. Its relevant part reads: "Decides to establish, in accordance with the report of the Secretary-General, a United Nations Transitional Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice;...". 226 For details see Ratner, see note 219, 11-12, a similar system applied for Eastern Slavonia to provide for a peaceful transition of that territory from Serbia to Croatia S/RES/1037 (1996) of 15 January 1996. 227 A. Rapp/ C. Philipp, "Conflicts Cambodia/Kampuchea", in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 1995, 200 et seq. (206). 228 For further details see Rapp/ Philipp, see above, 206-207.

  • 229 A detailed analysis of the governmental activities of the Authority is pro- vided by Stahn, see note 220, 134 et seq. 230 S/RES/1272 (1999) of 25 October 1999. See also in this respect, C. Stahn, "The United Nations Transitional Administration in Kosovo and East Timor: A First Analysis", Max Planck UNYB 5 (2001), 105 et seq. 231 See Stahn, see note 220, 165 et seq. 232 G.B. Helman/ S.R. Ratner, "Saving Failed States", Foreign Policy 89 (1992- 1993), 12 et seq. (13) add another form, namely the assistance to a govern- ment such as supervising elections or a referendum. 233 S/RES/1483 (2003) of 22 May 2003; S/RES/1500 (2003) of 14 August 2003.

  • z34 S/RES/1483 (2003) of 22 May 2003, fifth pre-ambular paragraph. z35 See Report of the Secretary-General pursuant to para. 24 of S/RES/1483 (2003) of 22 May 2003, Doc. S/2003/715 of 17 July 2003, para. 19. 236 According to the Report of the Secretary-General, see above, para. 24, the 25 member Governing Council has a slight Shi'ah majority; it includes three women, and an equal representation of Kurds and Sunnis. There are also representatives of Christians and Turkmen. z3� See, in particular, the statement of the representative of Mexico.

  • 238 This has been highlighted in the Report of the Secretary-General, see note 235, in particular paras 19 to 21. 239 See T.M. Franck, "The Emerging Right to Democratic Governance", AJIL 46 (1992), 86 et seq. 240 Stahn, see note 220, 141.

  • 241 Critical, however, as far as East Timor and Kosovo are concerned, Frowein, see note 219, 50 et seq.; Stahn, see note 220, 152 et seq. claims that in Kosovo international human rights standards have not always been fully respected by the UN administration.

  • 242 Only article 3 common to the Four Geneva Conventions providing some basic humanitarian rules for the internal conflict can be regarded as being universally accepted.

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