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War on Terror and the Law of Armed Conflict: Legal Aspects and Implications

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War on Terror and the Law of Armed Conflict: Legal Aspects and Implications WAR ON TERROR AND THE LAW OF ARMED CONFLICT: LEGAL ASPECTS AND IMPLICATIONS Thesis submitted in candidature of the degree of Doctor of Philosophy in National Defence University Islamabad Submitted by Muhammad Imran Chaudhry Supervisor Prof. Dr. Pervez Iqbal Cheema 2014 Department of Peace and Conflict Studies National Defence University, Islamabad, Pakistan Certificate of Completion We hereby recommend that thesis submitted by Muhammad Imran Chaudhry titled “War on Terror and The Law of Armed Conflict: Legal Aspects and Implications” be accepted in partial fulfilment of the requirement for the degree of Ph.D. in the Discipline of Peace and Conflict Studies. Prof. Dr. Pervaiz Iqbal Cheema (Supervisor) ________________ (External Examiner) Countersigned By: ______________________ ___________________ (Controller of Examinations) (Head of the Department) ii Scholar’s Declaration I, hereby, declare that thesis submitted by me titled “War on Terror and The Law of Armed Conflict: Legal Aspects and Implications” is based on my own original research work and has not been submitted to any other institution for any degree. Date: September 4, 2014 Muhammad Imran Chaudhry (Ph.D. Scholar) iii Supervisor’s Declaration This is to certify that PhD dissertation submitted by Mr. Muhammad Imran Chaudhry (Registration No: NDU-PCS/Ph.D-Tfr/S-09/001(1988-ASC/Ph.D-07) titled “War on Terror and The Law of Armed Conflict: Legal Aspects and Implications” is supervised by me and submitted to meet the requirements for partial fulfillment of the degree of Ph.D. in Peace and Conflict Studies. Date: September 4, 2014 Prof. Dr. Pervaiz Iqbal Cheema Dean Faculty of Contemporary Studies National Defence University Islamabad iv Dedicated to my parents (May they both live long) and my beloved family for their love, endless support and encouragement. v Acknowledgements First of all, I am thankful to Allah, the Almighty, for providing me strength and showering His blessings on me to proceed successfully. This academic endeavor could not have been possible, if I had not been instructed, advised, helped, and supported by my advisors, mentors, colleagues, friends and well-wishers. I would like to express my personal gratitude to my advisor Professor Dr. Pervaiz Iqbal Cheema for his able supervision and persistent directions. Sir, your invaluable guidance, trust, inspiration, motivation and constructive comments throughout my research work have made this thesis a success. I would like to extend my wholehearted appreciation to my co-supervisor Dr. Noman Omer Sattar and head of department Dr. Ishtiaq Ahmad Choudhry for their valuable advice, reinforcement and insightful discussion to support my research and writing process. I would especially like to thank Professor Richard Buxbaum, University of California, Berkeley, USA and Professor Christopher Candland, Wellesley College, Massachusetts, USA for their excellent guidance and care during my research work at University of California, Berkeley. I would also like to be thankful to all heads of departments and faculty at National Defence University for their respected suggestions to improve my thesis. My acknowledgment also goes to entire office staff of the Peace and Conflict Studies Department and university administration for their help and assistance towards my postgraduate affairs. Thanks to all my friends and colleagues especially Hassnain Ali Shah, Nauman Zafar, Suleman Ahmed, Waqar Sheikh and Asadullah Khan for their kindness and moral support to strive towards my goal. I also appreciate the Higher Education Commission of Pakistan to provide financial assistance for my research project and visit abroad. A special thanks to my whole family. Words cannot express how grateful I am to my mother, father, brother, sisters, aunts, uncles and my little angels, Warisha and Asad, for all the sacrifices they have made on my behalf. Their prayers for me were what sustained me this far. At the end, my entire appreciation goes to my beloved wife, Nafisa, who spent sleepless nights with me and was always my support in the moments when there was no one to answer my queries. Thank you very much! vi Table of Contents Title Page Certificates ii Acknowledgement vi Table of Contents vii List of Acronyms and Abbreviations xi Table of Documents xii Table of Cases xx Abstract xxii 1. Introduction (1-17) 2. Rules Governing War: Jus ad Bellum and Jus in Bello (18-50) 2.1. Concepts of Jus ad Bellum and Jus in Bello 20 2.1.1. Historical Evolution 21 2.1.2. Religious Perspectives 26 2.1.3. Modern Model of Just War Ethics 30 2.1.4. Contemporary Model of Just War 33 2.2. UN Charter and Right to Use Force 39 2.3. Just War Theory and International law 42 2.4. Preemptive Self-Defense and its Legal Dispositions 45 2.5. Conclusions 49 3. The General Framework of the LOAC (51-72) 3.1. The LOAC and Its Main Sources 54 3.1.1. Customary International Law 55 3.1.2. Treaty Law 57 3.1.2.1. Hague Law 58 3.1.2.2. Geneva Law 59 3.2. Fundamental Principles of the LOAC 62 3.2.1. Military Necessity 63 3.2.2. Humanity 63 vii 3.2.3. Distinction 64 3.2.4. Proportionality 64 3.2.5. Limitation 65 3.3. Scope of Legal Applicability 65 3.3.1. Material Scope 66 3.3.2. Personal Scope 66 3.3.3. Spatial (Geographical) Scope 67 3.3.4. Temporal Scope 68 3.4. Rules on Belligerence 68 3.4.1. Restrictions on Weapons 68 3.4.2. Prohibited Means and Methods of Warfare 70 3.5. Command Responsibility 71 3.6. Conclusions 72 4. Applicability of the LOAC to the War on Terror (73-86) 4.1. Conduct of a War and the LOAC Standards 76 4.2. Counterterrorism and Rules of Engagement of Non-State Actors 79 4.3. Responsibility of Belligerents 81 4.4. Military Necessity and Objectives in the ‘War on Terror’ 82 4.5. Proportionality and Military Actions 84 4.6. Conclusions 85 5. Issues of Compliance in the War on Terror (87-106) 5.1. Legitimate Targeting 89 5.2. Means and Methods of Warfare 93 5.2.1. Use of Deadly Weapons 93 5.2.2. Identification of Legitimate Targets 94 5.3. Enemy Detainees and Status of PoWs 96 5.4. Treatment of Detainees 99 5.5. Command Responsibility and War Crimes 103 5.6. Conclusions 106 6. Drone Strikes and Targeted Killing in the War on Terror (107-130) 6.1. Legitimacy of Targeted Killings 108 viii 6.2. Drone Strikes outside Battlefield and the Right to Use Force 111 6.2.1. Article 51 and Targeted Killings in Self-defense 112 6.2.2. Implied Consent 116 6.3. Drone Strikes and the LOAC 118 6.3.1. Material Scope 119 6.3.2. Personal Scope 120 6.3.3. Spatial Scope 122 6.3.4. Temporal Scope 123 6.4. Drone Strikes and Principles of the LOAC 123 6.4.1. Principle of Distinction 124 6.4.2. Principle of Proportionality 127 6.5. Conclusions 129 7. Implementation Mechanism of the LOAC in the War on Terror (131-144) 7.1. Application of the LOAC and Role of the UN 134 7.1.1. Right of Self-defense and the Role of Security Council 134 7.1.2. Partial Application of the LOAC 137 7.2. Issues Regarding Implementation Mechanism of the LOAC 139 7.2.1. Military Tribunals 139 7.2.2. Power Protecting System 140 7.2.3. Role of Neutral States 140 7.2.4. Prosecution of Detainees 141 7.2.5. Escaping the Role of the UNSC 141 7.2.6. Role of Other International Organizations 142 7.3. Conclusions 142 8. Correlation between the LOAC and IHRL (145-158) 8.1. Rights and Freedoms under IHRL 146 8.2. Relationship between the LOAC and IHRL 147 8.2.1. Correlation during Armed Conflict 148 8.2.2. The Doctrine of Lex Specialis 149 8.3. Common Framework of the LOAC and IHRL 150 8.3.1. Minimum Humanitarian Standards 150 ix 8.3.2. Interplay between the LOAC and IHRL 151 8.4. Conclusions 156 9. Conclusions (159-168) 10. Bibliography (169-193) 11. Appendices (194-261) Appendix A: Address to a Joint Session of Congress and the American People Appendix B: US Congress Joint Resolution Appendix C: Address to the Nation on Operations in Afghanistan Appendix D: Negroponte Letter to UN Security Council Appendix E: UN Charter Appendix F: Military Order of November 13, 2001 Appendix G: Memo Humane Treatment of Taliban and al Qaeda Detainees Appendix H: LOAC x List of Acronyms and Abbreviations 9/11 September 11, 2001 AJIL American Journal of International Law AP Additional Protocol of 1977 ASIL American Society of International Law Art Article CIA Central Intelligence Agency HRL Human Rights Law ICJ International Court of Justice ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the Former Yugoslavia IHL International Humanitarian Law IHRL International Human Rights Law LNTS League of Nations Treaty Series LOAC Law of Armed Conflict NATO North Atlantic Treaty Organization PoW Prisoner of War SC Security Council UAV Unmanned Aerial Vehicle UN United Nations UNAMA United Nations Assistance Mission in Afghanistan UNSC United Nations Security Council US United States UNTS United Nations Treaty Series WMDs Weapons of Mass Destruction WW I World War I WW II World War II xi Table of Documents (Used or Referred in This Study) Treaties “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.” 129 Consol. T.S. 361, entered into force June 22, 1865. Geneva, August 22, 1864. “Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (Saint Petersburg Declaration).” St.
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