¹ General SirSmith, Rupert, The Utility of Force: The Art of War in the Modern World 380 (2007)Google Scholar.

² Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter First Geneva Convention, Second Geneva Convention, Third Geneva Convention, and Fourth Geneva Convention respectively].

³ See HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel [December 13, 2006] (unpublished) [hereinafter Targeted Killing], an English translation is available at http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34pdf (last visited Feb. 11, 2007)

⁴ See Brownlie, Ian, The Rule Of Law In International Affairs 213 (1998)Google Scholar (The rule of law requires that the exercise of power by officials must be based on authority conferred by law; law must conform to standards of substantial and procedural justice; the executive, the legislature, and the judicial functions must be separated; the judiciary should not controlled by the executive; and all legal persons are subject to the law.).

⁵ See Keegan, John, A History Of Warfare 57 (1993)Google Scholar (“The civilised societies in which we best like to live are governed by law, which means that they are policed …”).

⁶ Fourth Geneva Convention, supra note 2, art. 4. See also Dormann, Knut, The Legal Situation of ‘Unlawful/Unprivileged Combatants, 849 Int'l Rev. Red Cross 45, 48–49 (2003)Google Scholar.

⁷ Fourth Geneva Convention applies in the territory of a Party to the conflict and in occupied territory. See supra note 2, art. 5.

⁸ Id. art. 64 (subject to repeal or suspension for reasons of security or application of the Convention).

⁹ Id. art. 54.

¹⁰ Convention Respecting the Laws and Customs of War on Land (Hague, IV), Oct. 18, 1907, 36 Stat. 2277, 2306, 205 Consol. T.S. 277, 295 [hereinafter Hague Regulations].

¹¹ Benvenisti, Eyal, The International Law of Occupation 9 (2nd ed. 2004)Google Scholar.

¹² Hague Regulations, supra note 10, art. 43. The reference here to “civil life” comes from the official French version which has been suggested was incorrectly phrased as “safety” in the first English translation. See Benvenisti, supra note 11, at 7 n. 1 relying on Schwenk, E.H., Legislative Power of the Military Occupant under Article 43, Hague Regulations, 54 Yale L.J. 393 (1945)CrossRefGoogle Scholar.

¹³ Benvenisti, supra note 11, at 105. See also Dinstein, Yoram, The International Law of Inter-State Wars and Human Rights, 7 Isr. Y.B. Hum. Rts. 139, 149 (1977)Google Scholar (“The human rights of civilians in time of war—mainly in occupied territories—are incorporated in the Hague Regulations and in the [F]ourth Geneva Convention.”).

¹⁴ See Dinstein, Yoram, International Law of Belligerent Occupation and Human Rights, 8 Isr. Y.B. Hum. Rts. 104, 105–106 (1978)Google Scholar. See also Benvenisti, supra note 11, at 5–6.

¹⁵ See Dinstein, supra note 14, at 111. See also Wolfrum, Rudiger, The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: To What Extent May Security Council Resolution 1483 Be Considered a Model for Adjustment, in International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein 497, 500–01 (Schmitt, Michael N. & Pejic, Jelena eds., 2007)Google Scholar (where it is noted the responsibility of the occupier “entails policing functions designed to protect, for example, museums, hospitals, the public infrastructure, public buildings, and diplomatic facilities against looting or destruction.”).

¹⁶ See Van Creveld, Martin, The Rise and Decline of the State 206 (1999)CrossRefGoogle Scholar (“two of the most characteristic features of the modern state are its specialized police forces on the one hand the prison system on the other.”).

¹⁷ See The U.S. Army, Marine Corps Counterinsurgency Field Manual ¶ 91 (2007)Google Scholar [hereinafter The Counterinsurgency Manual].

¹⁸ Id. at 246, ¶¶ 1–37. See also Shultz, Richard H. & Dew, Andrea J., Insurgents, Terrorists and Militias: The Warriors of Contemporary Combat 243 (2006)Google Scholar (where it is indicated that the idea of establishing orderly government in Iraq in late 2003 was “quickly dispelled with the bombings in Baghdad of the International Committee of the Red Cross and several police stations, the shooting down of a Chinook helicopter near Fallujah, killing fifteen U.S. soldiers, and the suicide attack against the Italian headquarters in Nasiriyya.”). But see Sassòli, Marco, Legislation and Maintenance of public Order and Civil Life by Occupying Power, 16 Eur. J. Int'l L. 661, 665 (2005)CrossRefGoogle Scholar (where a distinction is suggested that: “[p]ublic order is restored through police operations, which are governed by domestic law and international human rights law, and not through military operations governed by IHL on the conduct of hostilities[.]” Although he also admits that when organized armed resistance continues in an occupied territory that distinction between the conduct of hostilities and operations destined to maintain law and order “is more difficult to establish”).

¹⁹ See Hashim, Ahmed S., Insurgency and Counter-Insurgency in Iraq 188–200 (2006)Google Scholar (where a broad spectrum of attacks in Iraq are identified as including violence not only against U.S. and Coalition military forces, but also senior Iraqi political figures, foreign companies, Iraqis “collaborating” with occupation authorities, Iraqi security officers and services, critical infrastructure (such as power stations, liquid natural-gas plants and oil installations) and symbolic targets such as the Jordanian Embassy, the UN Headquarters and Abu Ghraib prison.).

²⁰ See Internattonal Committee Of The Red Cross, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary, art. 4, at 58 ( Pictet, Jean ed., 1960)Google Scholar, available at http://www.icrc.org/ihl.nsf/COM/375-590007?OpenDocument (last visited Feb. 14, 2008) [hereinafter ICRC Commentary, Geneva Convention No. III] (where the link between insurgency and organized resistance movements is recognized:

In our view, the stipulation that organized resistance movements and members of other militias and members of other volunteer corps which are independent of the regular armed forces must belong to a Party to the conflict, refutes the contention of certain authors who have commented on the Convention that this provision amounts to a “ius insurrectionis” for the inhabitants of an occupied territory.

See also The Counterinsurgency Manual, supra note 17 at 2, ¶¶ 1–2 (where it is stated “an insurgency is an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control.” (emphasis added K.W.).

²¹ See The Counterinsurgency Manual, supra note 17 at 14, ¶¶ 1–37.

²² Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) [hereinafter Nuclear Weapons Advisory Opinion].

²³ Id. at ¶ 25.

²⁴ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, at 41–42 (July 9).

²⁵ See Fourth Geneva Convention, supra note 2, art. 6 which provides that the Convention continues for a year beyond the end of hostilities although general enumerated provisions of the Convention apply where the Occupying power continues to exercise governmental powers. This reflects a general concept that the situation within occupied territory should become stable within one Year.

²⁶ See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 1(4), Dec. 12, 1977, 6 U.S.T. 3114, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]), (that article indicates that the Conventions and the Protocol cease to apply on the termination of the occupation.). See also International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts: Commentary, art. 3. ¶ 156 [hereinafter ICRC Commentary Additional Protocol I], available at http://www.icrc.org:

The termination of occupation may occur a long time after the beginning of that occupation, and can come about in various ways, de facto or de jure, depending on whether it ends in the liberation of the territory or in its incorporation in one or more States in accordance with the right of the people or peoples of that territory to self-determination.

²⁷ Baxter, Richard, The Duty of obedience to the Belligerent Occupant, 27 Brit. Y.B. Int'l L. 235, 235 (1950)Google Scholar.

²⁸ Id. at 244 (“War treason” has been variously described, but the majority of definitions agree that it involves the commission of hostile acts, except armed resistance and possibly espionage, by persons other than members of the armed forces properly identified as such.).

²⁹ Id. at 253 (after referring to Francis Lieber's definition of “renewer of war within an occupied territory” Richard Baxter states “[i]t presumably refers to uprisings in arms by groups of persons as distinguished from individual acts of hostility and from such conduct as sabotage committed either by individuals or groups” with the latter activities for what he states as an obscure reason falling within the concept of war treason.). See also Lieber, Francis, Guerrilla Parties Considered with Reference to the Laws and Usages of War, reprinted in Richard Shelly Hartigan, Lieber's Code and the Law of War 31, 37 (1983)Google Scholar.

³⁰ See Fourth Geneva Convention, supra note 2, art. 4(2) (where it is acknowledged that “[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements (emphasis added K.W.), belonging to a Party to the conflict and operating in or outside of their own territory, even if this territory is occupied” (emphasis added K.W.) can have prisoner of war status (which has been interpreted to also include combatant status) provided they meet certain conditions such as being commanded by a person responsible for his subordinates, carrying arms openly, etc.).

³¹ See Additional Protocol I, supra note 26, art. 44(3) (where specific rules relating to obligations for combatants to distinguish themselves apply in “situations of armed conflict where, owing to the nature of hostilities (emphasis added K.W.), an armed combatant cannot so distinguish himself.” In this context the claim for combatant status is recognized by many nations as being limited to occupied territory or operations in respect of national liberation movements. See also declarations made by Australia, Canada, France, the United Kingdom, and Germany.

³² Persons who do not qualify for combatant status but participate directly in hostilities have variously been termed “unlawful belligerents,” “unlawful combatants,” “unprivileged belligerents,” or simply “enemy combatants.” “Unprivileged belligerent” is a term that seeks to avoid the emotive issue of “legitimacy.” See Baxter, Richard R., So-called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs, 28 Brit. Y.B. Int'l L. 323, 328 (1951)Google Scholar (defining unprivileged belligerents as “persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949”).

³³ See Fourth Geneva Convention, supra note 2, arts. 68 & 78.

³⁴ See ICRC Commentary, Geneva Convention No. IV, supra note 26, art. 54, ¶ 2.

³⁵ Id.

³⁶ The Counterinsurgency Manual, supra note 17, at 229, ¶¶ 6–90.

³⁷ See ICRC Commentary, Geneva Convention No. IV, supra note 26, art. 54.

³⁸ Kolb, Robert, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 324 Int'l. Rev. Red. Cross 409, 416 (1998)Google Scholar.

³⁹ See Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int'l L. 44, 71 (1990)CrossRefGoogle Scholar quoting Cohen, E., Human Rights in the Israeli-Occupied Territories 1967–1982 29 (1985)Google Scholar (where it is noted that the concept of human rights and in particular the Universal Declaration of Human rights was taken into account in drafting the Geneva Conventions.).

⁴⁰ Roberts, Adam, What Is a Military Occupation?, 55 Brit. Y.B. Int'l L. 249, 261 (1984)Google Scholar. (Among the “other possible categories” Professor Roberts has identified occupation by United Nations or similar forces; occupation of a territory for which the United Nations is responsible; and occupation by a non-state entity.).

⁴¹ See Benvenisti, supra note 11, at 4:

The emphasis is thus put not on the course through which the territory came under the foreign state's control … but rather on the phenomenon of occupation. This phenomenon can be defined as the effective control of a power (be it one or more states or an international organization, such as the United Nations) over a territory which that power has no sovereign title, without the volition of the sovereign of that territory.

See also Kelly, Michael, Restoring and Maintaining Order in Complex Peace Operations 111–43 (1999)Google Scholar and Ratner, Steven R., Foreign Occupation and International Territorial Administration: The Challenges of Convergence, 16 Eur. J. Int'l L. 695, 695–698 (2005)CrossRefGoogle Scholar.

⁴² Roberts, supra note 40, at 250.

⁴³ Id. at 297.

⁴⁴ Hague Regulations, supra note 10, art. 42.

⁴⁵ See Kelly, supra note 41, at 112.

⁴⁶ Id. at 113.

⁴⁷ See ICRC Commentary, Geneva Convention No. IV, supra note 26, art. 6.

⁴⁸ See Roberts, Adam, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int'l L. 580, 598–599 (2006)CrossRefGoogle Scholar (outlining that the Hague Regulations and Fourth Geneva Convention were not determined to be applicable to the UK forces in Basra regarding the use of force by the U.K. Court of Appeal because it was not possible to determine they were in “effective control” of Basrah City, however, in respect of a detainee who died in custody was subject to the jurisdiction of human rights provisions.).

⁴⁹ See Roberts, supra note 40, at 97–102.

⁵⁰ Ben-Naftali, Orna & Shany, Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17, 105 (2003–2004)Google Scholar.

⁵¹ See 17 7(E) Human Rights Watch Report, (June 2005), available at http://hrw.org/reports/2005/iopt0605/iopt0605.pdf (“International humanitarian law applies to situations of belligerent occupation as well as situations where hostilities rise to the level of armed conflict. The application of IHL does not pre-empt the application of IHR—particularly nonderogable rights such as the right to life.”). See also Targeted Killing, supra note 3, at 20 (for an outline of the position taken by the Supreme Court that the Fourth Geneva Convention does not apply to the occupied territories as a matter of conventional law due to the fact it has not been enacted through domestic legislation, however, the humanitarian aspects are applied as a matter of principle. Further “the customary provisions of the First Protocol are a part of Israeli law.”). See also Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 32–34 (2002)Google Scholar. As Adam Roberts has indicated most of the international community, and of international legal opinion, has not accepted the argument that the Fourth Geneva Convention is not formally applicable in that case. See Roberts, supra note 40, at 282.

⁵² For a detailed discussion of the complex nature of the post conflict “occupation” in Iraq see Roberts, supra note 39, at 604-18. See also Benvenisti, supra note 11, at viii-xv (where it is noted the occupants did not explicitly acknowledge their status as occupying powers and were reluctant to use the term occupation).

⁵³ See Hashim, supra note 19, at 170-76.

⁵⁴ Id. at 170.

⁵⁵ Id. at 152-55. See also Hoffman, Bruce, Inside Terrorism 285 (2006)Google Scholar (for an outline of the Al Qaeda movement, which unlike the hierarchical, pyramidal structure of past terrorist groups “is in the main flatter, more linear, and more organizationally networked.”).

⁵⁶ See Hashim, supra note 19, at 158-60.

⁵⁷ Id. at 160.

⁵⁸ Id. at 169. See also Shultz & Dew, supra note 18, at 240-42.

⁵⁹ See, e.g., Hoffman, supra note 55, at 163-65 (for an outline of the rivalries and competition between the various Palestinian organizations.).

⁶⁰ See Smith, supra note 1, at 3-4 (“it is the reality in which the people in the streets and houses and fields—all the people, anywhere—are the battlefield. Military engagements can take place anywhere: in the presence of civilians, against civilians, in defence of civilians.”). See also Wolfrum, supra note 15, at 501 where it is noted fighting pockets of resistance would be guided by the law of armed conflict while law enforcement measures should be guided by the 1979 UN Code of Conduct for Law Enforcement Officials, 186, G.A. Res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46), U.N. Doc. A/34/46 (1979) and the 1990 U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Officials, ¶ 9, U.N. Doc. A/CONF.144/28/Rev.1 (1990).

⁶¹ For an outline of the complex status of some parts of the Occupied Territories post Oslo Accords see Kretzmer, David, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 Eur. J. Int'l L. 171, 206 (2005)CrossRefGoogle Scholar:

Under these agreements, the West Bank was divided into three different zones: “A” areas in which both civil and security matters were in the hands of the Palestinian Authority established under the agreements; “B” areas, in which security control remained the responsibility of Israel, while civil matters were the responsibility of the Palestinian Authority; and “C” areas in which Israel retained responsibility for security matters while responsibility for civil matters was divided between Israel and the Palestinian Authority. In Gaza there was a similar, although not identical, arrangement.”)

And Wedgewood, Ruth, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defence, 99 Am. J. Int'l L. 52, 58–59 (2005)Google Scholar.

⁶² See Kretzmer, supra note 61, at 206.

⁶³ See Sassòli, supra note 18, at 668 (where it is suggested that a gendarmerie or specially trained military forces be deployed on policing duties. However, there are rarely sufficient forces to follow this approach and the nature of the threat cannot always be isolated so that a particular military or police force can be used.).

⁶⁴ McCann v. United Kingdom, 21 Eur. Ct. H.R. 97. ¶ 148 (1995). See also The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 60, at ¶¶ 1, 11.

⁶⁵ McMann v. United Kingdom, supra note 64, ¶ 149.

⁶⁶ McKerr v. United Kingdom, 34 Eur. Ct. H.R. 553, 595-96, ¶ 100 (2001) (allegations by next of kin that pattern of conduct by police authorities in using unnecessary and disproportionate force was evidence of a “shoot-to-kill” policy).

⁶⁷ McCann v. United Kingdom, supra note 64, ¶ 148.

⁶⁸ McKerr v. United Kingdom, supra note 66, at 599, ¶ 111.

⁶⁹ See generally Watkin, Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int'l L. 1, 19–20 (2004)CrossRefGoogle Scholar.

⁷⁰ Protocol Additional to the Geneva Conventions of 12 August 1949. Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Additional Protocol II].

⁷¹ In Canada the armed forces can be called out by statute or in exercise of the Crown prerogative in support of law enforcement [ i.e., The Emergencies Act, R.S., ch. 22 (4th Supp. 1985), and the National Defence Act, R.S., ch. N–5 (1985), Canadian Forces Armed Assistance Directions, P.C. 1993-624 (Mar. 30, 1993).]. See also Wardlaw, Grant, Political Terrorism: Theory, Tactics and Couter-Measures 97–100 (1982)Google Scholar (for a discussion of para-military and “third force” units.).

⁷² See Additional Protocol I, supra note 26, art. 48.

⁷³ Id. art. 52

⁷⁴ Id. art. 57.

⁷⁵ See Hampson, Françoise, Human Rights and Humanitarian Law in Internal Conflicts, in Armed Conflict and The New Law 55, 71 (Meyer, Michael A. ed., 1989)Google Scholar (there is no European Commission of Human Rights or Human Rights Committee).

⁷⁶ See Meron, Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239, 266–75 (2000)CrossRefGoogle Scholar (outlining the increasing involvement of U.N. and regional bodies.).

⁷⁷ See Kretzmer, supra note 61, at 206.

⁷⁸ Isayeva, Yusupova & Bazayeva v. Russia, Eur. Ct. Hum. Rt., App. Nos. 57947-49/00 [Feb. 24, 2005) (unpublished) and Isayeva. v. Russia, Eur. Ct. Hum. Rt., App. Nos. 57950/00 [Feb. 24, 2005] (unpublished).

⁷⁹ See Abresch, William, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, 16 Eur. J. Int'l L. 741 (2005)CrossRefGoogle Scholar. See also a critique of the Isayeva decisions in Kaye, David, International Decisions, 99 Am. J. Int'l L. 873 (2005)CrossRefGoogle Scholar.

⁸⁰ Ratner, supra note 41, at 702.

⁸¹ Dennis, Michael J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Militaly Occupation, 99 Am. J. Int'l L. 119, 141 (2005)CrossRefGoogle Scholar.

⁸² Abr. Frowein, Jochen, The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, 28 Isr. Y.B. Hum. Rts. 1, 11 (1998)Google Scholar.

⁸³ Ben-Naftali & Shany, supra note 50, at 103.

⁸⁴ See Ratner, supra note 41, at 702.

⁸⁵ Id.

⁸⁶ Id. at 703.

⁸⁷ Kaye, supra note 79, at 878.

⁸⁸ See Ratner, supra note 41, at 710.

⁸⁹ Targeted Killing, supra note 3.

⁹⁰ Ratner, supra note 41, at 710 (“both the United States as the chief occupying power in Iraq and UN missions such as UNMIK may equally treat those resisting the missions through force as combatants and respond accordingly. But in other aspects of their mission, such as treatment of common criminals, they should apply human rights law.”). See also Sassòli, supra note 18, at 665-66 (for a discussion of how the normative regime would change based on the threat.).

⁹¹ Ratner, supra note 41.

⁹² See Kretzmer, supra note 61, at 195.

⁹³ See Watkin, Kenneth, Humanitarian Law and 21^st Century Conflict: Three Block Wars, Terrorism, and Complex Security Situations, in Testing the Boundaries of International Humanitarian Law 1, 42–46 (Breau, Susan & Jachec-Neale, Agnieszka eds., 2006)Google Scholar (where the operation of these three criteria in assessing whether an armed conflict is in existence is set out in greater detail.).

⁹⁴ While particularly evident in times of occupation there is a potential broader application to all insurgencies. See, e.g., The Counterinsurgency Manual, supra note 17, at 246, ¶¶ 7-27 (which uses Iraq as an example in referring to the challenge presented military forces in establishing and maintaining civil security when dealing with an insurgency).

⁹⁵ Iraq: Looting, Lawlessness and Humanitarian Consequences, Amnesty International Report 7 (MDE14/085/2003), available at http://www.amnesty.org/en/library/info/MDE14/085/2003:

While recognizing that the UK/US military forces are not a policing force, Amnesty International urges them to do everything in their power to maintain law and order within the requirements of international human rights and humanitarian laws. Troops with the appropriate training and in adequate numbers must be deployed as a matter of urgency to ensure such functions.

See also Sassòli, supra note 18, at 667-68.

⁹⁶ See Nagl, John A., Learning to Eat Soup With a Knife: Counterinsurgency Lessons from Malaya and Vietnam 223 (2005)Google Scholar (In discussing the conflicts that occur within states John Nagl states “(t)he ability to learn quickly during such operations in order to create an organizational consensus on new ways of waging war—or of waging peace may be of more importance for modern military institutions than ever before.”)

⁹⁷ See Smith, supra note 1, at 379:

I have found it helpful when operating amongst the people to hold in mind that the military are there to impose order. To this end there is a good principle in English common law which is that when you are faced with violent disorder and it is your duty to quell it, then you are to take the course of action with the least likelihood of causing loss of life and property.

⁹⁸ Kaye, supra note 79, at 878.

⁹⁹ Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L/V/II.95, doc. 7 rev. at 602 (1997) (Commission report) (In the Abella decision the Inter-American Commission on Human Rights relied on the “concerted nature of the hostile acts undertaken by the attackers, the direct involvement of governmental armed forces, and the nature and level of the violence” in determining that IHL was applicable.). But, see Moir, Lindsay, Law and the Inter-American Human Rights System, 25 Hum. Rts. Q. 182 (2003)CrossRefGoogle Scholar for a review of the limits placed by the Court of Human Rights on the way in which the Inter-American Commission applies humanitarian law.

¹⁰⁰ Ergi v. Turkey, 31 Eur. Ct. H.R. 388 (1998).

¹⁰¹ Id. at 431.

¹⁰² The term “armed conflict” covers a wide spectrum of potential violence. Such conflict ranging from that just above “to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence” [as set out in Additional Protocol II, Art. 1(2)] associated with emerging insurgencies to interstate “total war” such as occurred in World War II culminating in the use of nuclear weapons.

¹⁰³ For a discussion of the impact of human rights norms in the context of assessing proportionality and collateral damage see Watkin, Kenneth, Assessing Proportionalily: Moral Complexity and Legal Rules, 8 Y.B. Int'l Hum. L. 3, 39–40 (2005)Google Scholar.

¹⁰⁴ Case No. IT-95-16-T, Trial Chamber (Jan. 14, 2000).

¹⁰⁵ See also the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia available at http://www.un.org/icty/pressreal/nato061300.htm (last visited Feb. 14, 2008).

¹⁰⁶ Targeted Killing, supra note 3, at 18.

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ Id. ¶ 40.

¹¹⁰ Id.

¹¹¹ Id. See Cohen, Amichai & Shany, Yuval, A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killing Case, 5 J. Int'l Crim. Just. 310, 314 (2007)CrossRefGoogle Scholar (where it is suggested the court identified three “sub-tests” that qualify the obligation to exhaust non-lethal alternatives and indicate it accepted the indeterminate nature of the proportionality test: non-lethal alternatives may not always be available; such alternatives ought not be used if IDF soldiers are to be exposed to greater risks; and they should be abandoned if nearby innocent civilians might also be exposed to such risks).

¹¹² Additional Protocol I, supra note 26, art. 57(2)(a)(ii). This provision of Additional Protocol I is seen as being reflective of customary international law. See Customary International Humanitarian Law 51–55 (Henckaerts, Jean-Marie & Doswald-Beck, Louise eds., 2005)CrossRefGoogle Scholar [hereinafter the Customary Law Study].

¹¹³ The right to life of combatants has at times been seen as either traded away or objectivized. See Abresch, supra note 79, at 757 (“Loosely, the combatant trades his right to life for the right to kill”). See also McKeogh, Colm, Innocent Civilians: The Morality of Killing in War 164 (2002)CrossRefGoogle Scholar (where reference is made to combatants being “treated as instruments”).

¹¹⁴ See Kretzmer, supra note 61, at 178 (“Under this model a state may not prevent criminal acts by eliminating the potential perpetrators.”).

¹¹⁵ See Abresch, supra note 79, at 760 (“There is potential for the ECtHR to actually improve on the protection of civilians, as well as combatants, in internal armed conflicts.”).

¹¹⁶ See Kretzmer, supra note 61, at 181 (“it should depend entirely on the threat that the said individual poses, and the availability of alternative means of neutralizing that threat.”).

¹¹⁷ Third Geneva Convention, supra note 2, art. 4 A.(2).

¹¹⁸ See Cohen & Shany, supra note 111, at 314.

¹¹⁹ Targeted Killing, supra note 3, at 58

¹²⁰ Id.

¹²¹ See Michael Walzer, Just and Unjust Wars 153 (1977)Google Scholar (‘“proportionality’ is the contemporary expression of the medieval moral doctrine of ‘double effect’, where authority is provided to “perform an act likely to have evil consequences (the killing of noncombatants)…”)

¹²² See Schmitt, Michael, War: Technology, and International Humanitarian Law, 4 Occasional Paper Series 51 (Summer 2005)Google Scholar, available at http://www.hpcr.org/pdfs/OccasionalPaper4.pdf (“It is impossible to relate objectively the value of military advantage to collateral damage and incidental injury; they are dissimilar values that cannot be compared meaningfully except in extreme cases.”)

¹²³ Ergi v. Turkey, supra note 100.

¹²⁴ See Cohen & Shany, supra note 111, at 317-320. See also Ben-Naftali, Orna, A Judgment in the Shadow of International Criminal Law, 5 J. Int'l Crim. Just. 322, 324 (2007)CrossRefGoogle Scholar (where it is suggested that the Targeted Killing is “written in the long shadow of developments in ICL” [international criminal law]) and Cassesse, Antonio, On Some Merits of the Israeli Judgment on Targeted Killings, 5 J. Int'l Crim. Just. 339, 341 (2007)CrossRefGoogle Scholar (where it is indicated a particularly valuable aspect of the decision is the fleshing out of “loose rules” of IHL and the effect that “[t]he more frequently courts of law pronounce upon the permissibility or impermissibility of military actions, the more extensive and forceful are preventative restraints on military behaviour…”)

¹²⁵ Targeted Killing, supra note 3, at 58.

¹²⁶ See Watkin, supra note 69, at 33-34.

¹²⁷ See Boot, Max, War Made New: Weapons, Warriors and the Making of the Modern World 415 (2006)Google Scholar (where in Fallujah, Iraq in November 2004 four U.S. marines and two army battalions (numbering 10,000 personnel) and 2,000 Iraqi soldiers retook Fallujah utilizing tanks and close air support in savage street fighting that demolished much of the city.) See also West, Bing, No True Glory: A Frontline Account of the Battle OF Fallujah 315–16 (2005)Google Scholar (there were “540 air strikes and 14,000 artillery shells and mortar shells fired, as well as 2,500 tank main gun rounds.”).

¹²⁸ Ben-Naftali & Shany, supra note 50, at 97.

¹²⁹ Prosecutor v. Delalic, Case No. IT-96-21-A, Appeals Judgment, NO. IT–96–21–A, ¶ 149 (Feb. 20, 2001) (Celebici case); see also Meron, supra note 76, at 266–67.