On Clandestine Warfare

41 Pages Posted: 20 Sep 2006  

Robert E. Rodes Jr.

Notre Dame Law School

Abstract

Common moral judgments on many types of clandestine warfare, referred to by some as terrorism, seem to be more nuanced and less severe than our current legal judgments. This paper begins by offering a detailed typology of clandestine operations and measures to combat them, a few general reflections on the laws of war, and a critique of those laws as they now stand. It then proposes a substantial revision of the laws which govern clandestine warfare based on four basic principles of the laws and the morality of just war: the independence of jus in bello from the jus ad bellum; the condemnation of perfidy; the immunity of noncombatants from attack; and quarter for lawful combatants when captured. With these four basic principles in mind, the paper concludes with a model "International Draft Convention on Clandestine Warfare" and a model "Draft Federal Act Concerning Armed Organizations".

Suggested Citation

Rodes, Robert E., On Clandestine Warfare. Washington and Lee Law Review, Vol. 39, 1982; Notre Dame Legal Studies Paper No. 06-27. Available at SSRN: https://ssrn.com/abstract=931640

Robert E. Rodes Jr. (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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