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Mediterranean Quarterly 16.1 (2005) 79-93



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International Law and the War on Terrorism

The international law pertaining to armed conflicts is of two general sorts. The jus ad bellum, or laws pertaining to war, relates to conflicts as a whole. Perhaps reflecting "just war" concepts, this body of law addresses, among other matters, the justifications for the outbreak of hostilities. The jus in bello, or law of warfare, on the other hand, considers those rules of the law of war relating to the conduct of actual hostilities and to the treatment of prisoners and the civilian population.1

Both concepts are now at issue. During the Iraq War, the United States has been said to disregard international law regarding the outbreak of hostilities, by not securing an unambiguous Security Council resolution as required by the United Nations Charter. At the same time, since hostilities began, the United States has been at best selective in adherence to the Geneva Conventions.

It is axiomatic that war and peace are central to national security. Therefore, the accepted rules for international conflict, both as to the legitimacy of the conflict itself and the conduct of hostilities, should take center stage in any national debate over the conduct of the war on terrorism. Sadly, this has not been the case. Instead, with regard to the jus ad bellum, President Bush [End Page 79] and Senator Kerry vied with each other to score the debating point that the nation's national defense must not be left up to the whims of foreign nations (a policy that fortunately did not obtain in 1783, when France's Admiral de Grasse bottled up the British fleet at Chesapeake Bay, making the ultimate victory at Yorktown and achievement of American independence possible).

With regard to the law of warfare, the jus in bello, there was a clear difference between the two presidential candidates. Both men condemned the abuses at Abu Ghraib prison, but President Bush has refused to apply the Geneva Conventions to persons held at Guantanamo. Senator Kerry, on the other hand, announced that his administration would have adhered to the rules required by the Geneva Conventions for all prisoners captured in the field.

At the outset, some observers seemed to take for granted that with the war on terrorism we are in a new situation and the old rules are inadequate. Some argued that the rules were an impediment to swift and effective action against a new enemy. However, opinions are changing, as the underlying wisdom of the laws of war and the price paid for disregarding them have become clearer.2 In this essay I take a brief look at both sets of rules and some of the reasons for their existence.

Jus ad Bellum: The Rules Pertaining to War

Traditional rules regarding the outbreak of hostilities included the necessity for informing the enemy nation before hostilities actually began. The Kellogg- Briand Pact of 1928 sought to outlaw war itself, or at least to encourage its renunciation as an instrument of state policy. Seeing the futility of this approach, statesmen sought to control the use of force rather than rely on hopes of banning it entirely.

The UN Charter, adopted pursuant to a widespread belief in the efficacy [End Page 80] of collective security against the background of the failure of the League of Nations to prevent the Second World War, dealt squarely with the use of force in Chapter 7. The following provide the basis for the Security Council's power to authorize the international use of force:

  1. Article 24(1): "In order to ensure prompt and effective action by the UN, its Members confer on the Security Council primary responsibility for the maintenance of international law and security, and agree that in carrying out its duties under this responsibility, the Security Council acts on their behalf."
  2. Article 39: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with...

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