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5 Law of Armed Conflict - Summary International Law Ordinary
International Law Ordinary (LAWS08114)
The University of Edinburgh
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INTERNATIONAL LAW AND THE USE OF FORCE STATES SUMMARY 1 Jus ad bellum international level 2 Jus in bello Treaty regime UN resolutions Customary international law 3 JUS AD BELLUM laws governing the resort to force Definition The rules governing resort to force. Rationale: law must seek to provide mechanisms to restrain and punish the resort to violence. Origins Early christian view of violence Early Christian view of violence The early Christian view of violence as explained Walzer (2002) was influenced Saint Augustine who argued God has the sword to government for good Thus, Augustine helped change Christian pacifism into a permission of an active Christian soldier, who would on the behalf of the worldly for the sake of imperial peace. (2002): The theory of just war began in the service of the powers : least that is how I interpret achievement: he replaced the radical refusal of Christian pacifists with the active ministry of the Christian soldier that why Christians could on behalf of the worldly city, for the sake of imperial peace as long as they fought justly. Grotius Just war theory was incorporated into International Law Grotius But the rise of the modern state and the legal acceptance of state sovereignty pushed the theory into the background. Realism From just wars to wars drove the of Machiavellian princes. Realists in the 50s and 60s. Results were understood in terms of national Just war theory relegated to religion departments Justice Walzer (2002): triumph of just war is real: what then is left for the now a military necessity theorists and philosophers to do? Is the answer pacifism? Walzer believes that war is still sometimes necessary Danger of triumph Relativism Absolutism Softening of the critical mind, a truce between theorists and soldiers REGULATION OF THE USE OF FORCE UNIVERSAL LEVEL THE UN CHARTER Article 2(4) members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any Customary international law: as such binding upon all states in the world community. What does it compromise? (as interpreted the 1970 declaration) 1 Wars of aggression are a crime against peace (liability) 2 States must not threaten or use force to violate existing international frontiers or to solve disputes 3 States are under a duty to refrain from acts of reprisal involving the use of force 4 States must not use force to deprive peoples of their right to and independence. 5 States must refrain from organising, instigating, assisting or participating in acts of civil strife or terrorism. Exceptions 1 Collective measures taken the United Nations 2 3 Humanitarian intervention military sancitons authorized the SC (Articles 1 As defined Caroline case: subjects seized and destroyed a vessel e in an American port. This had taken place because the Caroline had been supplying groups of American nationals, who had been conducting raids into Canadian territory. (Principles: necessity, instant, overwhelming, leaving no choice of means, and no moment for deliberation. Not unreasonable or Idealism of ethical necessity. Preamble to the Hague Convention is the desire to serve the interests of humanity and the ever progressive needs of civilisation. High rates of compliance states only sign treaties that codify norms which they would abide even in the absence of these treaties. Contract law area 10 percent or less that are breached that are significant. contract normative principles are normative. Origin Origin Developed from the middle of the nineteenth century Henry Dunant (1864): had been appalled the brutality of the battle of Solferino five years earlier. Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864): in 1906. Declaration of St Petersburg (1868): the use of small explosive or incendiary projectiles. Hague Conferences of 1899 and 1907 The Hague Conventions on Armed Conflict SOURCES HAGUE STREAM The Hague Conventio ns 1899 and 1907 Dealing primarily with rules governing the use of force or the and customs of first international agreement outlining basic rules for land warfare. Included prohibitions on mistreatment of prisoners and the protection of lives and property of civilians. POST WWII London Agreement 1945 Allies draw up conditions for the prosecution and punishment of major war criminals. Nuremberg Trials 1946 First time the world community tries international crime. individual liability for crimes under internaitonal law Crimes Against Humanity? The essence of IHL? for crimes against sexual violence. UN affirms GENEVA STREAM Geneva Conventio ns 1949 Law of Geneva, primarily concerned with the protection of persons from the effects of armed conflicts. Foundation: principle that persons not actively engaged in warfare should be treated humanely. Four different conventions 1 The Convention for the Amelioration of the condition of the wounded and sick in armed forces in the field (G C I) 2 The Convention for the Amelioration of the condition of wounded, sick and shipwrecked members of the armed forces at sea (G C II) 3 The Convention Relative to the treatment of prisoners of war (G C 4 The Convention Relative to the protection of civilian persons in time of war (G C IV): innovation and a significant attempt to protect civilians who, as a result of armed hostilities or occupation, were in the power of a state of which they were not nationals. 1977 Additional Protocols (a) designed to protect civilian populations against hostilities: previous GC do not deal with protecting people against hostilities, but is concerned with civilians in the hands of the enemy. (b) International vs Internal wars 2005 Protocol a third emblem to the two previously recognised ones. Rome Statute 1 Distinguishes 4 categories of war crime: (a) Grave breaches under the four 1949 Geneva Conventions (RS repeats the definitions on the Grave breaches are particularly serious violations of international humanitarian law. Imposes obligations on states regardless of nationality to bring them before their own courts. (b) Other serious violations of laws and customs applicable in international armed conflicts from 10907 Hague convention respecting the Laws and Customs of War on 1977 Protocol I Additional to the Geneva 1899 Hague Declaration (IV,3) concerning Expanding 1925 Geneva Gas Protocol) n Article 51: population as such shall not be the object of attack. Indiscriminate attacks are prohibited. Article 51(4): indiscriminate attacks. Article 52(2) Protocol I: objectives are those which make an effective contribution to military action. Article 57: care shall be taken to spare the civilian population, civilians and civilian objects. Difficulty There can be difficulty in determining a civilian, combatant object. Walzer (1997) have the right not to be deliberate targets of attack. However, Walzer condones unintended harm to noncombatants Provided proportionality is met the good effect that one aims to achieve must be greater than the collateral damages one foresees but do not intend. Prescribes only narrow to this absolutist rule: only in emergencies does the Doctrine of Double Effect apply. Supreme emergencies: circumstances in which intentionally killing is necessary to avert an unconscionable threat, Doctrine of double effect If something morally good has a morally bad ethically OK to do it providing the bad wasnt intended. is true even if you foresaw that the bad effect would probably happen. Highly disputed concept. The doctrine of double effect (DDE) the idea that, all else being equal, it is worse intentionally cause some terrible harm (such as killing civilians) than it is to cause the same harm as a to pursuing some other goal (such as targeting combatants). DDE is at work when people make the distinction between (aimed at killing civilians) and (which kills civilians only as a side effect collateral damage) Example 1 Legitimate defence: an army base in the middle of a city is bombed and a few civilians living near are killed as well, nothing unethical has been done, because the army base was a legitimate target and the death of civilians was not the intention of the bombing (even though their death could be predicted) 2 illegitimate defence: doctrine of double effect can be used to defend the use of weapons of mass destruction, such as nuclear weapons, area bombing, or chemical or biological weapons used against a population in general, since these are so indiscriminate in effect that civilian casualties cannot be regarded as a secondary result. Objections to DDE 1 it seems to make no sense from the point of view of the victim. What the victim is likely to care about is whether they are harmed not whether the harm was intended or merely foreseen. 2 It seems very odd that a combatant can make their act right or wrong merely thinking one thing or another. Whether an act is wrong would seem to depend on its effects not on what is happening within the mind of the person doing it. Counter arguments We cannot do just war theory without DDE modern war kills civilians If killing civilians as a side effect is just as bad as intentionally killing civilians then we seem to be either pushed in the direction of pacifism (modern war is always wrong) or in the direction of supporting total war (permitting the targeting of everyone). 3 The principle of proportionality Dual use objects Such as infrastructure etc. Much will depend upon whether the military circumstances are such that they fall within the definition provided in article 52(2). will require a balancing of military need and civilian endangerment. 4 Principle of unnecessary suffering St Petersburg Declaratio n 1868 Banned explosives or inflammatory projectiles Hague Article 22: right of belligerents to adopt means of injuring the enemy is not unlimited Article 23(e): is especially prohibited to employ arms calculated to cause unnecessary suffering. 5 Principle of honor Honor Where is the reality of this in modern styles of warfare where death and destruction can be almost without limit? David Kennedy Mark Findlay Lecture Balkan War Geneva Convention (honor and dignity): Rome Statute: not point out the gendered structure that leads to the violence on a massive scale against women Are the protections that are available to sexual violence relevant or not 1 Evolution of the law of war: of the foundations in war crime tribunals it means that the laws of war are skewed to the winners. Problematic. Example: Muslim women innocents raped as part of the war hard to relate to for the (allies). Nuremberg language: conditional. Idea that if there is certain forms of aggression that are considered to be illegitimate then certain forms of aggression (and war) are legitimate. Particular types of acts make sexual violence bad (but sexual violence to begin with is not bad?) Male soldiers could do what they liked with women (victors) 2 Rome Statute: war crime is a grave breach of the Geneva Convention. If we talk about gravity that also has an obverse, if you have grave breaches that assumes that some breaches are not. Unfortunately although this is not expressed in the psyche of many of those who look at sexual violence in war, there is an unspoken that some sexual violence is not in breach. Rape of men in war (The Guardian) 3 Law of armed conflict a legitimation process 4 Sexual violence in the Balkan wars Sexual violence was systematic 5 Geneva convention: Shall be protected against any attack on their honour in particular rape, enforced prostition and any form of indecent assault this is an interesting language (manifestation of patriarchal structure and binary narrative) We will not recognized rape in war as a separate crime: if its not a separate crime it is slotted in as a proof or a consequence of war crimes or genocide or crimes against humanity if the case then it makes it more difficult to prove the crime. 6 Akayesu breakthrough? Shifted the consideration from crimes against humanity to genocide. BUT genocide is of the 4 crimes the least successfully prosecuted. WHY: acts must be widespread and systematic, committed against a civilian population and on catalogued discriminatory grounds. High threshold of proof sexual violence is dependent on proof of the genocidal intent of the perpetrators. Distracts purpose from the protection of individual victims from predatory attack with any violent purpose. Definition: a regular pattern on the basis of a common policy requiring significant public and private resources 7 ICTY: would not consider it all, based on the fact that judges could not agree what rape was. Goes back to concept of consent. do not understand the complexity of consent through the requirement of coercion what of forced marriage in situations where consent is vicarious. What about no means no. discrimination? of? Would not come within genocide, not within crimes against humanity, Maybe war crimes. War crimes: rape torture? The act of rape only becomes a war crime when it has violated the neutral, unsexed social body of humanity. The body does not stand in for humanity. The body is a symbol of something, being devalued. CASE STUDY OF ALL THESE PRINCIPLES Use of nuclear weapons Nuclear weapons Cassesse 1 In theory nuclear weapons might be used in various different situations 1 Aggressive first strike 2 first strike 3 Second use in self defence (responding to a nuclear attack) 4 First use in a conventional war (to inflict devastating loss on the enemy in the course of a war) 5 Retaliatory use in a conventional war (against enemy first use of nuclear weapons, use of weapons of mass destruction) 2 Nuclear powers justify the use of nuclear weapons listed under 2 (premptive first strike), 3 second use in 5 retaliatory use in a conventional war. 3 Aggressive first strike? contrary to UN charter 2. 4 first strike? contrary to Article 2 because Article 51 of the UN Charter does not authorize such strikes, whatever the arms involved. However, the nuclear powers, in particular the five permanent members of the Sec Council, all claim that they are entitled to use nuclear weapons to prevent a his subordinates. Having a fixed distinctive sign recognisable at distance Carrying arms openly Conducting operations in accordance with the laws and customs of war (b) Determination: 5 says that the status of a detainee may be determined a competent tribunal. Until such he must be treated as a prisoner of war. Civilians. under IHL Geneva Conventions first and fourth. 50(1) of Protocol I 1977: civilian is defined as any person not a combatant, and in cases of doubt a person is to be considered a civilian. Sutton A distinction is deceptive means many different things to different people. SCOPE OF ARMED CONFLICT AS A LEGAL CATEGORY UNDER IHL IAC VS NIAC Definition IAC TAKES PLACE BETWEEN STATES. NIAC TAKES PLACE WITHIN STATES. (a) Geneva Conventions 1949. conflicts in which one or more non state armed groups are involved. Could be a state with a non state group or between non state groups only. (i) Geneva Convention State territory requirement: requirement that the armed conflict must occur in the territory of one of the High Contracting Parties to the Convention is now obsolete since the treaties is universally ratified. (ii) Level of intensity Organized armed forces. (b) Must apply Article 3 Common to all four Geneva Conventions. Those provisions are developed in and supplemented Geneva Protocol II of 1977. Represents the first attempt to lay down rules governing armed conflicts. A in because it contains within it the basic minimum standards of international humanitarian law applicable in conflict situations. (c) Protocol II 1977: desire of States not to have others interfering in their internal affairs was a major obstacle. Defines it. Level of intensity and organisation. As above. Developme nt 1 Early Only armed conflicts were regulated. rule was adopted concerning civil wars. Fighting insurgents remained under the sway of domestic criminal law. 2 Growing pressure to expand the Geneva Convention combatant definition (to give protection to Guerilla fighters) 3 Protocol 1977: are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If an armed combatant cannot so distinguish himself he might still retain status as combatant provided that arms are carried openly during each military engagement. A controversial formulation. TERRORISM AS A CRIME Definition 1 Intro Proliferation: proliferation of terrorist activity has provoked an increase in the body of law, at both national and international level, which has sought to counter and prevent it. This essay addresses the status of prohibition of terrorism, as it exists in international law. 2 Domestic vs international crime of terrorism: every nation in the world has adopted domestic legislation criminalising international terrorism. The question is the theme of terrorism really constitute a distinct topic of international law? 3 A problem of definition: No generally definitions of terrorism in international law: a primary issue is the definition falls under the law of armed conflict. If certain acts of terrorism may give rise o or form part of a situation of armed conflict. (a) Lord Carlile: pointed out the problematic of defining terrorism in 2007. Too narrowly too broadly. TIMES OF ARMED CONFLICT 1 International Humanitarian law prohibited terrorism conducted within the context of an armed conflict. BUT FOR THIS TO APPLY THERE MUST BE AN ARMED CONFLICT. Terrorist acts not likely to go under scope of armed conflict. (a) Geneva Conventions: it measures of intimidation or of terrorism are II prohibits acts of terrorism against persons not taking part in The main aim is to emphasise that civilians may be subject to collective (b) ICC: No international crime of terrorism in the strict sense. Terrorism in the strict sense as such is neither a war crime nor a crime against humanity. A definitional problem. individuals acts of terrorism may fall within the categories of war crimes, crimes against humanity or Genocide, fall under and legally, war cannot be waged against a phenomenon, but only against an identifiable party to an armed conflict. TERRORIST AS A COMBATANT Lawful vs unlawful combatant s Lawful combatants: of armed groups that do fulfill the conditions for combatant status. THE US WAR ON TERROR What: the armed conflict launched the US against Al Qaeda and associated groups following Unlawful combatants: belligerents (whether terrorists or otherwise) who belong to an armed group, in a context where either the individual or the group do not fulfil conditions for combatant A legitimate term? concept of an unlawful combatant is included in the third geneva convention, but the phrase itself does not appear in the document. Legal categorization: White House determined that the war was neither an international armed conflict (because the Al Qaeda was not a State party to the Geneva Conventions) nor a armed conflict (because the conflict went beyond the territory of one state) So just law enforcement? Specific of the war on terror amount to an armed conflict as defined under IHL. The war waged the USled coalition in Afghanistan is an example. Here they would be fully applicable. other aspects much of the violence perpetrated these terrorists are being done loosely organized groups or individuals that, at best, share a common ideology. It is therefore doubtful whether these groups and networks can be characterized as party to any type of armed conflict. Combatants classification: Combatants Nor civilians unlawful combatants. These can be attacked at any time and detained indefinitely without trial. In the US, the Military Commissions Act of 2006 codified the legal definition of this term and invested the US President with broad discretion to determine whether a person may be designated an unlawful enemy combatant under US law. ICTY Celebici judgement 1 Does not directly counter it in fact says that if civilians do directly engage in hostilities, they are considered unlawful combatants and may be prosecuted under the domestic law of the detaining state for such action. 2 But also says that: There is no intermediate status: person in enemy hands must be either a prisoner of war and, as such covered the third convention or a civilian covered the Fourth Convention. in enemy hands can be outside the law. 3 Thus in the US case are they really doing something lawful classifying the enemies at guantanamo as unlawful combatants. RULES THAT APPLY IN OCCUPIED TERRITORY Fourth Geneva Conventio n Article 47 Rights cannot be deprived Article 49 Prohibits individual or mass forcible transfers Article 70 Protected persons shall not be arrested, prosecuted or convicted for acts committed or opinions expressed before the occupation Occupied territory Section of Part of the Fourth Convention: Occupied Territory? Open to dispute. Article 42 of the Hague regulations provides that territory is to be considered as occupied when is actually placed under the authority of the hostile Case of the West Bank of Jordan and Israel: has argued that since the West Bank has never been recognised internationally as Jordanian territory, it cannot therefore be regarded as its territory to which the Convention would apply. Opinion of the Claims Commission: protections should not be cast into doubt because the belligerents dispute the status of territory. Also, neither text (Hague or Geneva) suggests that only territory the title of which is clear and uncontested can be occupied territory. ICJ Congo v Uganda: Human rights now seen as in principle applicable to occupation situations: way of Court decision. Court interpreted article 43 of the Hague Regulations to include duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence any third state.
5 Law of Armed Conflict - Summary International Law Ordinary
Module: International Law Ordinary (LAWS08114)
University: The University of Edinburgh
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