Law of Armed Conflict
Fall, 2012
I. Legal Basis for use of Force
A. Legal Basis
a. Jus ad bellum: Law applicable to Going to War
b. Jus in Bello: Law applicable in War
B. Historical Background
a. Just War Theory
b. War as Fact
c. WWI
d. League of Nations
e. Kellogg-Briand
f. WWII
C. United Nations Charter
a. Charter signed on June 26, 1945 and UN officially came into existence on Oct. 24, 1945.
b. Representatives from 50 countries; Main participants: U.S., China, Soviet Union, and U.K.
c. Key goal: establish a presumptive prohibition on the use of force by States.
i. Granting sovereignty over the “use of force” to an international organization.
ii. Art. 2 (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered; (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
d. Six Primary Organs of the UN, we will focus on three.
i. General Assembly (UNGA) (Arts. 9-22)
1. The assembly provides a forum for the member States to discuss matters of international concern, including the use of force.
2. The UNGA may discuss any questions or matters within the scope of the present charter; may make recommendations to the Members of the UN or the Sec. Council, or both.
ii. Security Council (Arts. 23-51)
1. the UNSC bears the authority and responsibility for the maintenance of int’l peace and security.
2. Consists of 15 members, five of which are permanent (China, Russia, France, U.K. & U.S.) the other ten members are elected for two-year terms.
3. Any of the 5 permanent members can veto any vote before the council.
4. Chapter VI – Pacific Settlement Disputes
a. Commits the parties to “seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
5. Chapter VII – Action w/ Respect to Threats to the Peace, Breaches of Peace, and Acts of Aggression.
a. This chapter vests the UNSC with the responsibility and authority to “determine the existence of any threat to the peace, breach of peace, or acts of aggression.”
b. Art. 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
c. Art. 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
6. UNSC’s power is very broad and when exercised, binding on the international community.
iii. International Court of Justice (Arts. 92-96)
1. Principle judicial organ of the UN and consists of 15 judges who are elected by separate vote of the UNGA and UNSC.
a. Judges serve for 9 years, and may be re-elected.
D. Use of Force
a. Article 2(4), states: “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN.
b. Consent
i. Art. 2(7) states: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
1. Interpretation: State Sovereignty
2. State Sovereignty gives a State the right to put down insurrections or other internal threats to the existing government, and confirms the basis for use of force by consent.
ii. If a nation requests aid from a fellow nation or ally, the fellow nation or ally is free to use force within the boundaries of the requesting nation.
iii. Consent can be manifested through a bilateral international agreement.
1. i.e., the Panama Canal Treaty – authorized the U.S. to use for in protecting the canal.
c. Security Council Authorization
i. Authorization from the security council can be granted in order to maintain international peace and security.
ii. Member nations agree to accept and carry out the decisions of the Security Council in accordance with the present charter.
d. Self Defense & Other Uses of Force
i. Article 51 of the UN’s Chapter VII states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
ii. Principles under “Self Defense:”
1. Necessity
a. requisite of the nation to have an objective necessity to respond with force in response to an attack or threat.
b. The state invoking the right of self defense must not have been the first aggressor.
i. Remember the “clean hands” doctrine of individual self defense
c. A resort to self defense is permitted only when the State is a victim to an unlawful attack or when such an attack is imminent.
2. Proportionality
a. Force used in self defense must be limited in scope, intensity, and duration to the threat which is reasonably necessary to counter the attack or neutralize the threat.
i. Response must not be disproportionate
3. Timeliness
a. Response must happen within some reasonable proximity in time to the hostile act.
i. The passage of time may minimize the threat and as a result, diminish the need for self-defense.
ii. A delayed response may look like a reprisal or revenge.
iii. “Inherent Right of Self Defense” – Various Viewpoints and Arguments
1. No action before armed attack
a. A nation cannot attack another nation in self-defense until it has been the object of an actual attack and then it can do so only until the Security Council takes some action.
2. Anticipatory Self-Defense
a. No requirement to wait until the actual attack occurs, but rather if an act is imminent, the potential victim can act in defense by anticipating that attack and taking action in advance of the attack.
3. Interceptive Self-Defense
a. Once an attacker has committed itself to an armed attack in an ostensibly irrevocable way, the target has the right to use force in self-defense.
4. Preventative Self Defense
a. Action to prevent a potential attack before it is imminent or even capable of being launched.
iv. Collective Self-Defense
1. Mutual assistance treaties, like NATO’s Article 5, typically provide that an attack against one or more signatories, is an attack against them all; and each signatory agrees to act in defense of each other in the event of an attack.
v. Armed Attack
1. States seem to agree that not all armed military actions constitute an “armed attack.”
vi. “until the Security Council has taken measures”
1. Many states, including the U.S., take the position that for the UNSC to remove the “right of self-defense,” the UNSC must take “effective action.”
e. Other Uses of Force
i. Protection of Nationals
1. There is a right to exercise self-defense on behalf of a state’s nationals abroad.
2. International law provides that the State in which the nationals reside have the responsibility to provide protection within its territory, and it would be in situations where the State was unable or unwilling to provide that protection that would authorize another state to intervene.
a. This typically is done through a “non-combatant” evacuation operation (NEO).
ii. Humanitarian Intervention and the Responsibility to Protect
1. Any actions of intervention must have a pure motive of humanitarian efforts; any evidence of self-serving motives will undermine the legitimacy of the intervention.
2. Responsibility to Protect
a. The domestic state carries the responsibility to protect its population from mass atrocities;
b. The international community has a responsibility to assist States in fulfilling this responsibility; and
c. The international community should use appropriate domestic, humanitarian, and other peaceful means to protect populations from these crimes.
d. If the Domestic State fails, the international community has the responsibility to step in.
f. Contemporary Challenges
i. Non-State Actors
1. ICJ stated that an “armed attack” (as found in Art. 51) can only come from States or from State-Sponsored armed groups.
a. However, it is unlikely that States will refrain from exercising their self-defense right merely because the attack comes from a non-state actor such as an armed terrorist group.
ii. Drones
1. Unsettled area of LOAC based on the clarification of the legality of use when drones are used to bomb another sovereign nation.
a. The U.S. has drawn on Art. 51 as legal justification for such action.
iii. Cyber Operations
1. Varying opinions and views as to the use of cyber weapons and how they will be treated.
II. Chapter 2 History and Sources of the LOAC
A. The LOAC Tradition
a. The LOAC “is inspired by the desire to diminish the evils of war by:
i. Protecting both combatants and non-combatants from unnecessary suffering;
ii. Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians; and
iii. Facilitating the restoration of peace.”
B. Historical Foundations
a. Christians in the Roman Empire, who originally rejected any form of welfare in accordance with their beliefs in Jesus Christ, ultimately adopted the “just war” rational to the use of force against other nations to reconcile their beliefs with the needs of the Empire.
b. As modern Western European nation-states emerged in the sixteenth and seventeenth centuries and war was fought between nations rather than between leaders, the Just War tradition receded in importance in favor of the use of war as an instrument of State policy.
c. Prussian Field Marshall Karl von Clausewitz characterized war as “not merely a political act, but also a real political instrument, a continuation of political commerce, a carrying out of the same by other means.”
i. In this context, there was no effective restrain on war other than political value or risk associated with pursuing it, and the physical costs associated with the suffering and destruction of war.
d. Memory of Solferino
i. Henri Dunant – traveling in Northern Italy to meet w/ Emperor Napoleon III, came across a battle between French and Sardinian forces;
ii. Witnessed horrible casualties and extensive suffering among them;
iii. Through his book and subsequent efforts, eventually led to the foundation of the International Committee of the Red Cross (ICRC).
e. The Lieber Code (Professor Francis Lieber from Columbia College during Civil War):
i. Wrote a detailed code of the rules to be followed by Union forces during the conflict with the Confederacy.
ii. The rules were intended to secure humane treatment of the population in occupied areas and prevent the already bloody conflict from developing into unrestrained brutality.
C. The Hague Law
a. Regulation of the Conduct of Hostilities
b. Established foundational LOAC rules concerning:
i. the qualifications of lawful combatants;
ii. POWs
iii. lawful and unlawful means and methods of warfare;
iv. the status and treatment of spies in wartime;
v. flags of truce, capitulations, and armistices; and
vi. military occupation of enemy territory.
c. the rules on conduct of hostilities established by the 1907 Hague Regulations have come to be known as “Hague Law” and remain directly relevant to military operations today.
D. The Geneva Law
a. This law is centered more on a humanitarian focus and the convention was inspired by Henri Dunant’s A Memory of Solferino; this is designed to protect the battlefield sick.
b. Geneva law, which se
red war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if said occupation meets with no armed resistance.”
i. This paragraph deprives belligerents in advance, of the pretexts they might in theory put forward for evading their obligations.
2. The de facto law trigger, known as “international armed conflict” enhanced humanitarian protections by aligning application of the Geneva Conventions with situations that present the risk of individuals suffering as a result of inter-state armed hostilities.
3. “Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Art. 2, even if one of the Parties denies the existence of a state of war.”
iv. Unlike CA2, CA3 triggered a much more limited corpus of law.
1. CA3 included two components:
a. 1) Procedural Prong – “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply.”
b. 2) Substantive Prong – the actual law triggered by the Procedural Prong now applicable to NIAC.
2. Anything that falls into a CA2 IAC – funnels to the full corpus of LOAC
a. Gives you access to all four Geneva Conventions and all of the LOAC
3. Anything that falls into a CA3 NIAC – funnels to the CA3 Substance
a. This is very limited (humane treatment)
b. You will never have POW status and occupation will never be allowed under CA3.
v. These two articles (CA2 & CA3) are understood as establishing the definitive law trigger for application of all treaty and customary international law related to their respective categories of armed conflict.
1. Contemporary LOAC application is contingent on two essential factors:
a. First, the existence of an armed conflict; and
b. Second, the nature, or character, of the armed conflict.
c. The Existence of an Armed Conflict
i. A dispute between two or more states followed by some use of a state military force related to the dispute is the clearest example of an armed conflict.
1. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous the participating forces, it suffices that one armed force take captive a any member of an enemy armed force – even if there is no fighting, the fact that a person covered under the Convention is detained is sufficient for its application – the number of persons captured is immaterial.
ii. Any inter-state controversy resulting in hostilities between opposing armed forces qualifies as an IAC, irrespective of how the states choose to characterize the action.
iii. Under CA3 – there is an obligation to extend humane treatment to all individuals taking no active part in hostilities, whether because they are not participating in hostilities, or because they have been rendered hors de combat (out of the fight) as the result of wounds, sickness, or capture.
1. This obligation is imposed on each party to the conflict.
iv. Armed Conflict Defined under CA3
1. Totality of the circumstances is the key to determining if an armed conflict of a NIAC character is in effect.
2. The question is when does a situation rise from one of an internal disturbance, regulated by domestic law, to one of an armed conflict, triggering LOAC obligations?
a. The most indicative factors are: “the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military” and those state armed forces “are prepared to observe the ordinary laws of war” even when acting under civil authority.
d. The Nature of the Armed Conflict
i. This provision defines the extent of LOAC regulation applicable to each respective “type” of armed conflict.
1. “international” or CA2 – triggers the full corpus of the LOAC (all four Conventions and all other conventional and customary LOAC provisions developed to regulate inter-state armed hostilities).
2. “non-international” or CA3 – triggers a more limited package of norms, such as the humane treatment mandate, supplemented by a limited (but increasing) number of customary norms that have “migrated” from the IAC realm.
ii. As long as the use of armed force is the product of an underlying inter-state dispute, the conflict is considered an international armed conflict.
iii. CA3 does not use the term “internal,” but instead expressly indicates that its substantive protections are applicable to all “conflicts not of an international character.”
1. Qualified by the fact that the armed conflict occur “within the territory of one of the High Contracting Parties.”
iv. Result of Hamdan v. Rumsfeld:
1. Hostilities between the U.S. armed forces and non-state belligerents operating trans-nationally are today considered armed conflicts within the meaning of CA3.
2. Thus, for the purpose of U.S. operations, any invocation of LOAC authority must be interpreted as falling within the scope of either CA2 or 3. Exercise of that authority will always be regulated by some LOAC humanitarian obligations.
