Academic journal article The George Washington International Law Review

Taking War Seriously: Applying the Law of War to Hostilities within an Occupied Territory

Academic journal article The George Washington International Law Review

Taking War Seriously: Applying the Law of War to Hostilities within an Occupied Territory

Article excerpt

ABSTRACT

This Article concerns the application of the law of war to large-scale hostilities between an occupant and guerrilla forces. The Article makes two claims that distinguish it from existing literature. First, it demonstrates that the rationales most often invoked as bases for applying the law of war are unavailable in the context of large-scale hostilities between an occupant and guerrilla forces. The Article then proceeds to develop an alternative rationale for applying the law of war to such hostilities. This rationale concerns the interest of individual soldiers in ensuring that the scope of application of the law of war fully coincides with the moral reality of war. Relying on this rationale as the main basis for applying the law of war entails strict limitations on the law of war's field of application. The purview of the law of war in the context of hostilities between an occupant and guerrilla forces is thus very narrow. Second, this Article argues that the law of war governs within its field of application in an unqualified manner. The status of the law of war as lex specialis taking precedent over the norms of international human rights law extends to conflicts between a state and a non-state actor. The Article thus takes issue with an approach advocating the adoption of a normative middle ground between the law of war and international human rights law.

I. INTRODUCTION

What is the scope of permission to use lethal force afforded to an occupant under international law? How are the distinctions between the armed conflict paradigm and the law enforcement paradigm applied in the context of hostilities between occupant and guerrilla forces? Is there a difference between a state's struggle against a transnational terrorist organization and an occupant's struggle against a guerrilla movement that engages in terror attacks as part of its modus operandi? These questions are the subject matter of this Article.

Since the eruption of the violent confrontation between Israel and the Palestinians (the "al-Aqsa Intifada") in September 2000, Israeli military operations have resulted in the death of over 1,800 Palestinians who were not involved in combat at the time of their death.1 This estimate includes 202 individuals who were targeted pursuant to an Israeli policy of killing certain Palestinian figures singled out in advance as terrorists ("targeted killing").2 This targeting also resulted in the killing of 121 innocent bystanders as collateral damage.3 In addition to targeted killing operations, the Israeli army's rules of engagement, applied throughout the al-Aqsa Intifada, allowed the use of lethal gunfire in non-life-threatening situations.4 For example, under certain circumstances, soldiers could open fire without warning at any armed Palestinian.5 Further, authorization was given to use types of weapons and ammunition which are likely to cause civilian injuries as collateral damage.6 The killing of Palestinians by the Israeli army occurred, by and large, in the West Bank and the Gaza Strip, which all parties considered to be territories under Israeli occupation.7 Following the Israeli withdrawal from the Gaza Strip in the summer of 2005, Israel maintains that its status as an occupant is now confined to the West Bank.8 The Palestinians dispute that assertion, arguing that the Gaza Strip remains under Israeli occupation.9

Estimates of civilian death toll in Iraq during the recent U.S.British occupation vary.10 By conservative estimates, in April 2004, anti-insurgency operations of the U.S. occupying forces in Falluja alone resulted in the deaths of about 600 civilians as collateral damage.11 The legality of the killings described here largely depends on which legal regime applies to the military operations of an occupant.

Much has been written about the distinctions between the law enforcement model and the armed conflict model.12 The former applies in time of peace and is governed by international human rights law;13 the latter applies in time of war and is governed primarily by the law of war. …

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