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Law of Armed Conflict
University of Mississippi School of Law
Brower, Charles H.

Law of Armed Conflict
Professor Charles Brower – Spring 2011
 
Introduction
 
The “law governing the use of force” is a body of law concerning two chief branches:
·         Jus ad bellum: this branch concerns the recourse to force or in other words the acceptable justifications to engage in an armed conflict.
·         Jus in bello: this branch concerns the application of force or rather the limits to acceptable conflict during an armed conflict.
 
These bodies of law are considered an aspect of public international law (the law of nations) and are distinguished from other bodies of law, such as the domestic law of a particular belligerent to a conflict that may also provide legal limits to the conduct or justification during an armed conflict.
 
Two Case Studies on the Use of Force
·         Iraqi invasion of Kuwait
·         U.S. war in Iraq after September 11
 
Iraqi invasion of Kuwait:
·         What justifications did Iraq give for its invasion into Kuwait?
o   Invited by political opposition
o   Strong historical claims to Kuwaitii territory
o   Accused Kuwait of “slant drilling”
o   Kuwait was exceeding OPEC production quota and undercutting the oil market (Iraq just finished war w/ Iran and needed to pay off its war debt)
 
·         Did the World accept these justifications? – NO
o   By attempting to provide legal justification for the invasion, Iraq recognizes the existence of the international law of armed conflict.
o   By rejecting Iraq’s justifications, the World recognizes that a state CANNOT:
§  to redress violations of international policy
§  to support another’s government
§  to restore historical lands or reinforce your position in the world
 
United State’s Post-September11 War in Iraq:
·         Why did U.S. want war in Iraq in 2001, after being satisfied w/ the status quo from 1998-2001?
o   Fear that Iraq was producing Weapons of Mass Destruction and the possibility that the country could partner w/ Al Queda
o   Show of force against large army to prove America’s power
o   “Operation Iraqi Freedom” – free the people of Iraq
·         What legal justifications did the U.S. provide for this war”
o   Saddam Hussein’s failure to comply w/ Security Council resolutions concerning:
§  the state’s manufacturing of WMDs
§  release of POWs
§  renunciation of the states association w/ terrorist organizations
§  the repressed citizens of Iraq
 
 
 
·         By providing legal justification, the U.S. recognizes the “jus ad bellum”
o   However, was the United State’s biggest ally in the war, Great Britain, justifications the same? – NO, Great Britain was only concerned w/ securing the state’s compliance in the U.N. Security Council resolutions concerning the disarmament of Iraq.
§  This suggests what? – That Great Britain rejects several of the U.S.’s arguments concerning the justification to resort to force – this suggests that the World will usually reject to the resort to force even in the face of vile dictatorships.
 
A legal system must have two (2) components:
·         Rules
·         Institution to enforce those rules
 
Jus Ad Bello
·         Creates obligations and rules in regard to 3 main categories:
o   Targeting – both selection of weapons and targets
o   Detainment and treatment of prisoners – prisoners are generally entitled to humane treatment and the capturing party must refrain from humiliation, torture, and coercion.
o   With respect to the citizens of an occupied territory – in general must treat citizens of occupied territory humanely, maintain order, maintain political institutions, and refrain from plundering/destroying property
·         Sources of Law:
o   International Law – particularly the United Nations Charter
§  In general the U.N. Charter prohibits the threat or use of force in international relations – permits in limited instances of self-defense or when in compliance w/ the Charter
·         Institutions:
o   United Nations Security Council – and also other U.N. organs play a role in the jus ad bellum
·         Remedies:
o   U.N. can authorize the use of individual or collective force against a violating state
·         Summary: The jus ad bellum branch of the law of armed conflict is an entirely international issue which is supervised by the United Nations.
 
Jus Ad Bello
·         Sources of Law:
o   Geneva Conventions: Different sources for different subjects, e.g. for:
§  Treatment of POWs – 3rd Geneva Convention
§  Treatment of Civilians in occupied terr. – 4th Geneva Convention
·         Institutions:
o   Here the focus shifts away from international governmental institutions altogether, main governance comes from:
§  ICRC (Red Cross) – officially but confidentially
§  Amnesty International – unofficially but openly to the public
·         Remedies:
o   Military or state prosecution – E.g. Saddam Hussein faced execution for the war crimes he committed.
o   What about U.S. officers who commit war crimes? – prosecution rarely pursued or successful, but U.S. has strong incentive to follow the laws of jus ad bello because we have a large and forward military (reciprocity keeps us in check – we don’t want our own troops or civilians to become the victims of war crimes)
·         Summary: The law of jus ad bello is much more free-standing – governed mostly by the Geneva Conventions and non-governmental bodies
 
Part II. Definitions and rules: war, force, and armed conflict
 
Historic definition of “war”: “a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.
·         Very broad and objective definition – as a result it is simple in application.
·         This is the definition of “war de facto”
 
Brownlie excerpt pg. 4 explaining “war in the legal sense”: State practice has emphasized that war is not a legal concept linked w/ objective phenomena such as large-scale hostilities between armed forces of organized state entities but a legal status the existence of which depends on the intention of one or more of the states concerned. In general terms, a war exists when there is a declaration of war.
·         Under this definition, parties may be at war w/ out ever firing a shot or in reverse hostilities resulting in considerable loss of life and destruction of property may not result in a state of war if the parties do not regard a “state of war” as existing.
·         Subjective definition – “de jure war” or “war in the legal sense.”
·         Benefits: Under this definition the parties can control the state of war.
·         Drawbacks: This definition allows parties to manipulate the laws of war.
 
The Naulilaa Case and Reprisals:
·         Reprisal –refers to an act of self-help which is illegal if taken alone, but becomes legal when adopted by one state in retaliation for the commission of an earlier illegal act by another state.
·         Elements – there must be:
o   A violation of international law
o   Unsatisfied demand
o   Proportionality
 
Pre-WWII: Up until WWII, war remained a subjective legal status made by declaration and if there had been a violation of the laws of war, the aggrieved party could act in self-help in the way of reprisals.
 
The End of “War”
·         The term “war” fell out of use as a legal term w/ the adoption of the U.N. Charter in 1945.  Art. 2(4) of the Charter prohibits all uses of force, war and lesser actions, except in self-defense or as mandated

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What view does the U.S. military take? – most strongly support law of international armed conflict
·         E.g.
o   Colon Powell known as the “reluctant warrior”
o   John McCain and many supporters – proposed Amd’t against torture in global war on terror
o   JAG officers at Guantanamo – after learning of torture leaked plans to public in attempt to restore requirement of jus ad bellum
·         Why? – Military/people w/ military connections have strong incentive to support the laws of jus in bello/ad bellum
o   In bello – honor/reputation, fear of reprisals (best way to protect your own from inhuman treatment is the treat enemy humanely), best way to protect leaders from war crimes
o   Ad bellum – after long campaigns our military is now weaker than ever
 
 
 
 
 
 
 
 
 
 
Internal Critique – Jus ad bellum
·         Franck – State practice in violation of Article 2(4) has killed the doctrine – only the words remain.
o   Not a lone voice in Int. law – many other people believe this and seem to repeat the argument every 15 years or so (see pg. 106 and 108, Glennon and Combacau)
§  This need to repeat the argument show that it has not won the day but still has some merit to it.
·         Henkin (pg. 105) – Article 2(4) has been harmed in some ways, but is not totally dead – we must look for signs of life, for instance, it has made war a shameful act.
·         Nicaragua case on Customary Int. Law: Customary int. law is made through consistent practice by states.
o   ICJ: The practice does not have to be completely consistent so long as most states follow the rules most of the time – this is enough to establish a custom.
§  Even when a state wrongly relies on the Charter for justification it nevertheless validates the legal regime.
·         Summary: jus ad bellum – not perfect but not totally useless either
 
Internal critiques taken together:
·         Critiques of jus in bello seems to be much shorter
·         Critiques of jus ad bellum seem to be more concrete/more open to live debate.
 
Result: The laws of Jus in bello were largely clear and uncontroversial until the Bush admin., but they are becoming clear again today – jus in bello is much more clear and uncontroversial than the laws of jus ad bellum.
 
Is there a common good between the two branches? – Restraining the use of organized violence as a political force – one tries to contain while the other tries to prevent.
 
Where should we focus our efforts in order to get more peaceful/secure world?
·         One would think the law of jus ad bellum because this is the controversial area.
·         However since ad bellum is the weaker body of law it may not support more weight, and in bello seems to have more room for improvement.
 
Summary:
·         External critiques – seem overstated
·         Internal critiques – have substance but seem incomplete
·         If jus in bello is the stronger branch of law perhaps it should serve as focus for improvement today.