Laws of War:
Amann, Fall 2013
Two Laws Of War:
· Jus ad Bellum:
o Law of going to war
§ Use of force, legality of war
o Question here is the war itself legal?
o On the UN charter 2 reasons are listed why can go to war
§ Legally attacked and need to defend self (no offensive war is allowed)
§ UN security council authorizes action
· Need 5 votes of the UN security council (check this)
· This won’t work for Syria because Russia and China won’t agree to go to war/won’t agree to act
· Jus in Bello:
o Law once war is under way
§ Law of armed conflict (LOAC)
§ “International humanitarian law” (IHL)
· Old notions of honor/reciprocity
o Minimum standards of humanity
o Doctrine of reciprocity
§ If agree certain things are against the law and against the custom, can predict behavior better
§ What emerged as reciprocal rules, is seen as giving a sense of decorum to war
· Newer notions of protection
· Bides non-state actors as well as states
o Minimum standards of humanity
o Universal acceptance of civilized people
· Constitutional Review of APII
o Constitutional review in Columbia because it takes all the law in that treaty and makes it national law
o The combatants in Columbia during the mid1990s, the combatants were simply citizens fighting against the gov
§ Lots of child soldiers and women soldiers in the FARC
o Said that unless begin to regulate troops, going to prosecute
§ In response to this, Columbia made this the laws of their country and has engaged in something like 4000 trials with their own soldiers
Doctrine of Lex Specialis:
· The doctrine states that where two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law, which only governs general matters (lex generalis).
LOAC/IHL:
· LOAC/IHL Purposes:
o Humanitarian
§ Protected persons
§ Civilians
§ Hors de combat
o Prevent combatants’ unnecessary suffering
§ 1859 Battle of Solferino
· There became concerns about the unnecessary bloodiness of fights
· Swiss Jean-Henri Dunant toured the field following the battle, and was greatly moved by what he saw. Horrified by the suffering of wounded soldiers left on the battlefield, Dunant set about a process that led to the Geneva Conventions and the establishment of the International Red Cross.
§ Means and methods of warfare (ex: chemical weapons are not allowed)
o Enable effective military operations
§ Accepts fact of war
§ Doesn't’ aim to outlaw war
o Can’t violate even if enemy does
§ IHL binds non-state actors as well as states
· Minimum standards of humanity
· Universal acceptance by civilized peoples
· Fundamental humanitarian values
§ Benefits 3rd parties
o Nongovernmental organizations
o Public standard setting
o Confidential working with states to comply
· Stalag 17 (1951)
o POWS with “Geneva Man”
o International Committee of the Red Cross
o Illustrated that rank mattered. If officer was caught, he would be kept with other officer
o Geneva man tries to enforce the laws of war
o The Geneva convention was all about trying to enforce the laws of war
· ICRC: International Committee of the Red Cross:
o Nongovernmental organization, public standard-setting (some things that they have to work on concerning standard compliance can be pretty serious)
o Confidential working with states to comply
o Has access to places that other people do not have access to, like Guantanamo
o Believes that can get the working towards the goal, if it keeps access and confidentiality
§ Problem with this:
· If could go public with it, could actually get more money etc from donors
o ICRC has the luxury of donors who respect its confidential goals
· Two sources of Law: Treaties and Customary LawàThey are key sources of IHL/LOAC
o Treaties:
§ Written agreements
§ Express consent: give express consent by ratification. When ratify, become state party to the treaty.
§ Bilateral (2) or multilateral (+2)
§ Universal: all states
§ “Hague,” “Geneva”
· Most IHL treaties fit into Hague law
o Hague treaties deal with the means and methods of war
· Geneva treaties tend to be more humanitarian law in their focus
o 1: land
o 2: ships
o 3: Prisoner of war protections
o 4. Protection of ships
§ Explicit, but rigid
· Have proof that countries have joined, while don't always have that for CIL
o Customary International Law (CIL): a bit like common law (common practices among states), different sources come together to be consulted.
§ Like common law
§ General, consistent state practice
§ Followed out of sense of legal obligation (opinio juris)
· To see what a country’s legal obligation is, have to look more into the treaties they have ratified/agreed to
§ Less definite, but flexible
· Prosecutor v. Fofana & Kondewa (Special Court for Sierra Leone ’08)
o Special court for Sierra Leone
§ Established 2002 at the end of a 10-year civil war in Sierra Leone
§ The rulers who were in power during decolonization refused to give up power
§ Prosecuted persons “most responsible”
§ 4 cases, about a dozen defendants
§ “Hybrid”: mixed international and national law and judges.
o Necessity=international law defense?
§ Trial chamber lessened sentence because defendants helping “legitimate government”
· Does this transform JIB into JAB?
· Back-door way of letting defendant claim “just war”?
§ Prosecution’s arguments:
· War crimes must be punished regardless of whether cause is “just”
§ Defendants’ argument:
· Absence of evil motive should mitigate sentence
o Fofana Appeals Chamber majority (1 dissenter)
§ Jus in bello not concerned with justness of conflict
§ Goal is to protect regardless
§ Considering political motive undermines “bedrock principle” of IHL
§ ICTY: Cicero got it wrong
· “international law is applicable to everybody, in particular during times of war”
· Article 2(4) UN charter
o The organization and its members…shall act in accordance with the following principles:
§ 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
o Charter’s 3 exceptions to general ban on cross border use of force:
§ Consent of territorial state: consenter must be authorized to use force in this way
§ UN Security Council
· Determines threat to international peace and security
· Per Ch. VII, Oks non-forcible and forcible measures
§ Individual or collective self-defense (art. 51)
· Necessary, proportionate to repel/deter, immediate
§ All uses of force outside this framework violate terms of Charter
· In extreme cases: international crime of aggression
· IHL/LOAC Intersection with/Distinction from Human Rights Law
o IHL/LOAC
§ Protects human dignity
§ Killing permitted in specified circumstances
§ Military necessity
§ Only during armed conflict
§ Force as 1st resort
§ “lex specialis”
o International Human Rights Law
§ Protects rights of individual against the state within state’s territory/jurisdiction.
§ Applies in peacetime and wartime
§ Relevance to acts in time of war
§ Torture, life, detention, trial
§ Derogation
§ Force as last resort
· Legality of Use of Nuclear Weapons:
o Protection of the ICCPr does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency
o Respect for life not such a provision
§ Can suspend courts during time of war, but can’t suspend the right to life
o There is no comprehensive or universal ban in international law on the use of nuclear weapons. However, in July 1996 the International Court of Justice concluded that international humanitarian law did apply to the use of nuclear weapons and that their use would generally be contrary to IHL’s principles and rules.
o Test of what=arbitrary deprivation of life determined by lex specialis
§ Recognizes that there is a conflict between the privilege of killing and the nonderible right to life in the human rights framework.
§ Refuse to say human rights law is irrelevant
§ Say that there is a presumption or hierarchy that’s the first law you’ll look to
o Not deduced from ICCPR language itself
o IHL/LOAC as trump card.
· Wall Case (ICJ 2004)
o Repeats same language
o Interprets differently
o Sometimes, not fully displacement but interplay
o Advisory opinion concerning Israel's plans to build a security fence separating Israeli settlements from the Palestinian occupied territories.
o The construction of the wall violates international law. Israel, the occupier, must end the illegal act. It must stop building th
d line of action against guerilla attacks.
o In the tribunal's opinion, taking hostages (and killing them in retaliation for guerilla attacks) was subject to several conditions
§ The tribunal also remarked that both the British Manual of Military Law and the U.S. Basic Field Manual (Rules of Land Warfare) permitted the taking of reprisals against a civilian population. (The British manual did not mention killing, but the US manual included killing as a possible reprisal.
· Nevertheless, the tribunal still found most of the accused guilty on count 1 of the indictment because it considered the acts committed by the German troops to be in excess of the rules under which the tribunal considered hostage taking and reprisal killings lawful
§ One common line of defense of the accused was the Plea of Superior Orders: they stated that they were only following orders from higher up, in particular from Hitler and Field Marshal Keitel. The tribunal recognized this defense only for some of the lower-ranked defendants, but concluded that in particular the highest-ranking officers, List and Kuntze, should have been well aware of the fact that these orders violated international law and thus should have opposed the execution of these orders, even more so as they were in a position that would have allowed them to do so
· There is a duty to obey IHL even contra orders
o But is this realistic?
· Humanity:
o 1907: “Until a more complete code of laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”
o Distinction: Article 48 Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.)
§ Basic rule: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
o Legality of the Threat or Use of Nuclear Weapons (ICJ 1996)
§ An advisory opinion delivered by the International Court of Justice (ICJ) on 8 July 1996
§ The decision provides one of the few authoritative judicial decisions concerning the legality under international law of the use or the threatened use of nuclear weapons.
· The main substantive issues regarded:
o Sources of international legal obligation and
o The interaction of various branches of international law, particularly the norms of international humanitarian law (jus in bello) and the rules governing the use of force (jus ad bellum).
§ Some things in it:
· No “conventional rule” and No general “customary rule”: Because didn’t find a conventional rule of general scope, nor a customary rule specifically proscribing the threat or use of nuclear weapons per se,
o Court then looks to IHL
§ Court the considered the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality.
§ After looking at IHL the Court observes that the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following:
