Use of Force, and International Humanitarian Law

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

 

            Relying on U.N. Security Council Resolution 1441 (2002) and on the sovereign authority of the United States to use force in assuring its own national security, President Bush has said that the United States and its allies will use armed force to disarm Iraq if Saddam Hussein and his sons do not leave Iraq within a 48-hour deadline.

 

           On January 10, 2003, North Korea announced (a) that it was withdrawing from the Nuclear Nonproliferation Treaty (NPT), effective immediately, and (b) that its withdrawal from the NPT left it free from the binding force of its Safeguards Agreement with the International Atomic Energy Agency (IAEA).

 

The U.N. Secretary-General's High-Level Panel on Threats, Challenges and Change has issued a lengthy report setting out a broad framework for collective security. [1]   It touches on several issues of international law and organization, including some important ones that are the focus of this Insight.