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Unpublished Paper
Untying the Gordian Knott: A Proposal for Determing Applicability of the Laws of War to the War on Terror
ExpressO (2008)
  • Geoffrey S. Corn, South Texas College of Law
  • eric t. Jensen
Abstract

For the past six years, one of the most difficult questions related to law and war has been when do the laws of war apply to the war on terror? From 1949 through 2001, a state-centric law triggering paradigm evolved into almost an article of faith among the international legal and military community. The events of September 11th, 2001 however threw this paradigm into disarray. Since that time, the United States 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. Unfortunately, responding to such questions by application of the traditional war triggering paradigm was like fitting a square peg into a round hole. 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. The article analyzes how focus on the rules of engagement related to military operations offers perhaps the best de facto indicator of the line between conflict and non-conflict operations, and therefore is the best triggering criterion for the fundamental principles of the laws of war. The article will conclude with a proposal for adoption of this new law triggering paradigm, and a discussion of some pragmatic policy concerns that will need to be carefully considered in any such adoption.

Keywords
  • law of war,
  • law of armed conflict,
  • rules of engagement,
  • Geneva Conventions,
  • War on Terror,
  • Terrorism
Disciplines
Publication Date
January 18, 2008
Citation Information
Geoffrey S. Corn and eric t. Jensen. "Untying the Gordian Knott: A Proposal for Determing Applicability of the Laws of War to the War on Terror" ExpressO (2008)
Available at: http://works.bepress.com/geoffrey_corn/1/