Corn & Jensen: Untying the Gordian Knott: A Proposal for Determining Applicability of the Laws of War to the War on Terror

Geoffrey S. Corn (South Texas College of Law) & Eric Talbot Jensen (Judge Advocate General’s Corps, U.S. Army) have posted Untying the Gordian Knott: A Proposal for Determining Applicability of the Laws of War to the War on Terror. Here's the abstract:

One of the most difficult legal questions generated by the U.S. proclaimed Global War on Terror has been determining when, if at all, the laws of war apply to military operations directed against nonstate actors? This question has produced a multitude of answers from scholars, government officials, military legal experts, and even the Supreme Court of the United States. The only aspect of this question that would likely generate consensus among these diverse viewpoints is that the difficulty of applying a state-centric law triggering paradigm to a dispute that defies state-centric classification has created tremendous legal uncertainty.

While from a lay perspective it may seem that resolving such a question is like "dancing on the head of a needle", the resolution has profound consequences for virtually every person involved or impacted by this "war". Since the time of the U.S. military response to the attacks of 9.11, the executive branch has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Responding to such questions by application of the traditional law-triggering paradigm was like fitting a square peg into a round hole. Because of this, the time has come to develop a new approach to determining application of the laws of war that reconciles this disparity between authority and obligation related to the conduct of combat military operations. This will require adopting a new triggering "criteria". This trigger must reflect both the underlying purpose of the laws of war, but also the pragmatic realities of contemporary military operation.

It is the thesis of this article that a nation's assignment of status based ROE to its military should constitute the trigger requiring that nation and its military to apply the laws of war to that military operation. As nations prepare to use military force, national leaders dictate rules on how the military should use military force in the impending operation. These rules, broadly categorized as Rules of Engagement (ROE),fall into two general categories: conduct based ROE which allow military personnel to respond with force based on an individual's actions, and status based ROE which allow military personnel to use deadly force based only on an individual's membership in a designated organization, regardless of their conduct.