Use of Force, and International Humanitarian Law

            The United Nations Security Council, in Resolution 1441 (November 8, 2002), unanimously deplored Iraq's lack of compliance with Resolution 687 (1991) on inspection, disarmament and renunciation of terrorism in Iraq, and went on to make several decisions under Chapter VII of the U.N. Charter. Resolution 687, like Resolution 1441, was adopted under Chapter VII.  Chapter VII gives the Council the authority to determine the existence of a threat to the peace, breach of the peace or act of aggression, and to take action accordingly. 

 

According to news reports, President Bush and his advisors are developing a new national security strategy based on pre-emptive action against terrorist groups and states that are trying to develop weapons of mass destruction.  It has been reported that the new policy reserves the right to act even if the threat is not judged to be imminent.  The pre-emptive action would not necessarily involve armed force, but that option is not ruled out.

 

Introduction

In light of the recent detentions of members of the Taleban and Al-Qaeda, questions have been raised as to what protections they are afforded under international law.  At the same time, attempting to apply existing international law to the novel circumstances presented by their cases yields substantial controversy and reveals possible gaps in the law.

 

I.  The Fact of Occupation