Laws of War Outline

Laws of War
Amann
Fall 2013
 
 
 
Purposes of International Humanitarian Law [IHL] / LOAC
 
§  Complexity of issues
·         JIB :jus (law/right) in bello – Legality of the warfare; Conduct of hostilities
§  Does it follow the regulations of conduct during the war?
§  Often called as International humanitarian law / LOAC
·         JAB: jus ad bellum – laws of going to war
§  Key Q: Is the war itself legal?
§  US’s start of Iraq war = whether you are authorize use of military forces is a JAB question
·         ‘Is this a JIB or JAB question?’
§  Sending an intelligent agent to target someone in foreign jx is a war
§  Killing a civilian? JIB question – You cannot deliberately attack civilians
·         What is a ‘civilian?’
·         Distinction – military must distinguish civilians and combatants
·         Ie. Often schools and hospitals which are civilian objects as a definition have dual characteristics – taken over by rebels
 
§  LOAC / IHL [JIB] ·         Not designed to outlaw war; nor make it make impossible to fight
·         “In times of war the law falls silent.”
o   But definitely this is longer true?
·         Often the laws come from codifications over different conflicts between different parties over the time. They developed the ways permissible and impermissible.
·         When the laws started getting written down, they wrote down customs. (ie. different military training customs)
·         Some people may want to work in terms of law: You want to know what everyone else is doing.
·         Predictability
·         New idea: preserve captives for the benefits of both parties
 
§  Protection of Civilians and Others Hors de Combat
·         Colombian Constitutional review of AP II
§  Colombia joined the AP II and incorporated them into its national system.
§  Court: IHL binds nonstate actors as well as states.
·         “Minimum standard of humanity”
§  ie. You can detain people for security reasons but cannot torture them. -> “military necessity”
·         “Universal acceptance by civilized peoples.”
·         “Fundamental humanitarian values”
·         Benefits 3d parties: protect civilians caught up in combat zones
§  Thus, cannot excuse violation because of counterparty’s noncompliance (non-reciprocal conditions)
 
 
§  Purposes of IHL/LOAC
·         Humanitarian
§  Protected persons
§  Civilians
§  Hors de combat – “outside the combat”; those who used to be combatant but no longer to be.
§  Principle of distinction – once you have a group of protected persons and that of non protected persons, you have to distinguish them.
·         Prevent combatants’ unnecessary suffering
§  1859 Battle of Solferino – flashpoint of concerns of unnecessary bloodsheds.
§  Minimize suffering – Cruelty is not allowed.
§  Means & methods of warfare: ie. Ban on chemical weapons; making people die in a legitimate way.
·         AP I art. 35 (1): Ban on weapons or methods of warfare that increase suffering without really increasing military advantage.
·         Mere fact that a weapon is lethal =/= unnecessary suffering
·         Judged in circumstances
·         Enabling effective military operations
§  Accepts fact of war
§  Does not aim to outlaw war
 
§  Two Sources of LOAC
1.      Treaties: Int’l k/legislation between states
§  Written agreements
§  Express consent: ratification
§  Bilateral (2) or multilateral (+2)
§  Universal: all states
·         Most IHL treaties are universal
·         Geneva Conventions are the only universal treaties
§  Hague, Geneva: Geneva law treaties are tending to be more humanitarian
2.      Customary int’l law: like common law
(ICRC puts this as ‘commentary customary law’)
§  General, consistent state practice: by at large, what is typically followed by states (objective survey)
§  Followed out of sense of legal obligation (opinio juris)
·         Subjective survey
·         Really hard to figure out
3.      Which one we prefer?
§  Treaty – written, clear, can prove that the countries joined
·         Explicit but rigid (not easily change – whole amending process)
§  Customary Law – with certain rules, we can bind countries which decided to opt out.
·         Less definite but flexible 
§  Key Actor
·         Organization from the Geneva Man – ICRC (Int’l Committee of the Red Cross)
·         Protecting human beings and giving humanitarian aids and monitoring
·         Nongovernmental organization
§  Symbol – diamond for countries that refuse to use the cross symbol
§  Effective Watch dog role
·         Settle/promote the law/standard although cannot join the treaty or vote for it – very authoritative (Convening conferences in Geneva)
·         Public standard-setting
§  Effective tool to push compliance with the int’l law
§  ICRC has access to the conflict zones
·         Has good database – Treaties regarding wars
·         Confidential working w/states to comply
§  Advantages of having confidential work with state in terms of compliance:
·         Countries could be so embarrassed at publicity – more violations or worse conditions could be resulted in
·         More effective to bring to states’ compliance
o   Disadvantage of confidentiality: cannot get enough public attention to an issue
§  Jus ad bellum v. Jus in bello
·         Jus ad bellum:
§  Law of going to war – “Use of force” “legality of war”
§  Syrian chemical weapon use over its civilians
·         What the law is:
1. UN Charter
§  Exception: i. UN Security Counsel’s approval ii. Self-defense
§  Syria – neither exceptions apply.
§  Violation of JAB: crime of aggression
 
·         Jus in bello
§  Law once war is under way: “law of armed conflict” “int’l humanitarian law”
·         There are limits – ie. We are going to find military base, make sure whether there are civilians around the targeted areas.
·         Military uses “civilian shields” – Dual uses
§  Civilian purpose and military purpose
§  Old notions of honor/reciprocity
§  Newer notions of protection
·         Sometimes honor can have consequences: Offenses against women civilians were described as honor killing. This is not combatant’s honor. We begin to see much more protection.
§  Violation of JIB: war crime
 
·         Separation of JAB and JIB
§  JIB not limited by JAB
·         Not matter how or why a conflict started.
·         Once it begins, JIB is in effect without regard to any JAB considerations
 
§  Prosecutor v. Fofana and Kondewa
§  Special Court for Sierra Leone:
·         Est. 2002 @ end of 10-year civil war in Sierra Leone
·         Post conflict mechanism to enforce peace in that region
·         Prosecuted persons ‘most responsible’ for the conflict
·         4 cases, about a dozen of Ds
§  Rebel group 1
§  Rebel group 2 – separate case: pro government malicia (Fofana)
§  Charles Taylor case (president of Liberia)
·         Hybrid: allowed mixed int’l and national law & judges
·         Ad hoc – limited to one specific issue
§  Issue: Trial chamber lessened sentence b/c defendants helping ‘legitimate government’ [Necessity = int’l law defense?]                                                              I.      Does this transform JIB into JAB?
[legality of the war –> violations of conduct rule?] §  Prosecution:
·         War crimes must be punished regardless of whether cause is ‘just’
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