Our nations play independent roles in the world, yet our purposes are complementary. We have important work ahead.... The first great commitment is to defend our security and spread freedom by building effective multinational and multilateral institutions and supporting effective multilateral action.
President George Bush (1)
The post 9/11 period has the appearance of being a particularly divisive one for practitioners of international humanitarian law. Controversies have surrounded the prosecution of "war" against terrorism; coalition operations in Iraq; and the categorization and treatment of detainees. The conduct of military operations at the commencement of the 21st century has also shone a bright spotlight on traditional tensions in humanitarian law, such as the application of that law to conflicts between state and non-state actors. (2) A particularly difficult issue has been the categorization of the armed conflict against the Taliban and Al Qaeda in Afghanistan?
There has also been the challenge of determining what humanitarian law should be applied. The United States has not ratified Additional Protocol I, (4) although it does accept that a portion of its provisions are reflective of customary international law. (5) Further, many of the main protagonists in the post 9/11 conflicts have not ratified that Protocol. (6) As a result there has sometimes been reliance, perhaps too heavily, on Additional Protocol I as a source of binding positive law in respect of the campaign on terrorism. (7)
It is not clear to what degree the present debate on the recognition of "unlawful combatants" under international law has been impacted by what may be too literal an interpretation of Additional Protocol I. Strict interpretations of that Protocol appear to divide populations into only two distinct categories: lawful combatants and civilians. (8) In contrast, non-Protocol I-based interpretations do not include unlawful combatants or unprivileged belligerents (9) as innocent "civilians". (10) For example, the United States government appears to have grouped both lawful and unlawful combatants into one broader category of "enemy combatants," relying heavily on cases such as Ex Parte Quirin. (11) Canada has acknowledged that "unlawful combatants" exist as a category of participants in hostilities. (12) These unprivileged belligerents (13) would include civilians who take a direct part in hostilities, mercenaries and spies, all of whom are recognized under Additional Protocol I. (14) While different approaches to interpreting the law have not precluded the development of broad military coalitions involving European states, the United States, Canada and other countries, the opportunity for legal debate and potential disagreement has remained.
Further, the interpretation of humanitarian law appears at times to have been impacted by an undercurrent of political, ideological, strategic and jurisprudential differences between Europe and the United States. (15) There is also the effect that different international analytical approaches may have on the interpretation of humanitarian law. (16) This apparent European/United States divisiveness often places Canada in a challenging position. Geographically positioned as a close neighbour it still retains, in historical, cultural and legal terms, close links to Europe and, in particular, the United Kingdom and France. (17) In some respects it might be argued that Canada is uniquely situated to bridge any gaps, both perceived and real, between European and North American approaches to humanitarian law. However, confronting contemporary international humanitarian law issues can be as challenging for countries that have ratified Additional Protocol I, such as Canada, as they are for the United States. Unfortunately for all concerned, the more broadly accepted treaty law that binds nearly all nations and is widely recognized as reflecting customary international law, such as the 1949 Geneva Conventions, (18) does not always provide clear or definitive answers to present-day operational challenges. …