Law of Armed Conflict: Class #2International Conflicts

• Jus ad Bellum (Justice of War)– Regulates the decision to go to war– UN Charter

• Jus in Bello (Justice in War)– Regulates the actions of a State in war– Means and Methods; Targeting and Treatment

• Jus post Bellum (Justice after War)– Post conflict resolution – defining a just peace– Emerging body of ideas

A Brief Review:

Introduction to International Law

States1.Defined Territory2.Permanent Population3.Government4.Capacity to Conduct International Relations

• Who are the Key Players?

• Consequences of Statehood?

Introduction to International Law

• Sovereignty over territory and authority over its nationals• Status as a legal entity (acquire property, make contracts, enter into agreements, join international organizations, etc.)• Can join with other States to make international law

• Inherent Tension: Sovereignty is the ultimate benefit of statehood. Inherent to sovereignty is freedom from outside interference. International law, however, seeks to regulate State conduct. States “trade” aspects of sovereignty in order to reap the benefits of the international legal system.

Philosophy of Regulating WarReview

• Inter Arma Silent Leges– “Inter arma silent leges” is false; war can and must be subject to limits imposed by law

and reason– States accept limitations for strategic, pragmatic, and categorical reasons– The deliberate and discriminate use of force by modern militaries is so ingrained we

take it for granted– Modern technological and geopolitical realities blur the lines upon which the

traditional law of war is based (military/civilian; state/non-state)– This makes “locking the beast of war in a cage” (through law) even more problematic

• At the Vanishing Point– International law is different but not so different as to cease being law (it is not purely

voluntary)– States (even powerful ones) go to great lengths to follow it or to articulate good /

legitimate reasons for not following it– The law of war attempts to balance the opposing tensions of military necessity and

humanity; it does so imperfectly

Contrasting IHRL and LOAC

• Obligations on individuals• Specific principles• Enunciates individual and

state responsibilities • No state derogation• Protections linked to

nationalities or specific statuses (like combatants)

vsIHRL LOAC• Citizens hold individual

rights that their state respects

• General principles• Enunciates state

responsibilities• Allows for state

derogation• Rights given to all

Principle Sources of LOAC

• Consistent state practice + sense of legal obligation (opinio juris)

• Don’t need 100% agreement

• Still Binding on all states unless Persistent Objector

• Can’t object to Jus Cogens– universally accepted norms– genocide, slave trade, torture

LOACInternationalAgreements/Treaties

Customary International Law

• Treaties:• Hague (Means and

Methods)• Geneva (Respect and

Protect)• Additional Protocols I

and II

Treaty Law

• Multilateral treaty-formation is slow and difficult– Consensus hard to achieve– More and more states (194) – Leads to watered-down product?

• New approach: “Ottawa Procedure” – See Landmines and Cluster Munitions Conventions

• Negotiations limited to those who share in the aim of the treaty

“One war behind reality…”

Other Sources of LOAC• UN Charter (1945)– Modern Jus ad Bellum (Jus Contra Bellum)

• Commentaries for 1949 Geneva Conventions– Jean Pictet, Official Reporter – “Legislative

History”– http://

www.loc.gov/rr/frd/Military_Law/Geneva_conventions-1949.html

• FM 27-10, The Law of Land Warfare (1956) (Change 1, 1976)– Incorporates both law and policy

Other Sources of LOAC

• Art. 38 of the International Court of Justice Charter– Agreements and Custom– General principles of law of civilized nations– Judicial decisions/writings

• The ICRC CIL Study?http://www.icrc.org/customary-ihl/eng/docs/home

Treaty-Based Law of War

• Key LOW Treaties: – Hague IV: 43 parties– Geneva Conventions (I-IV): 194 parties– UN Charter: 192 parties– *Additional Protocol I: 170 parties– *Additional Protocol II: 165 parties– *Ottawa (landmines): 156 parties– *Rome Statute (ICC): 114 parties– *Dublin (cluster bombs): 49 parties

*US not a party

The LOW (governing IAC) is Highly Codified

The Hague

• Everyone has to be a “contracting party” them to apply to anyone

Common Article 2

“If, in time of war, a belligerent is not a party to the Convention, its provisions shall, nevertheless, be binding as between all the belligerents who are parties

~ Article 25

Cf. 1929 Geneva Conventions

Classification and Triggers

• Issue: What law applies? – “Right type of conflict?”

– Four possibilities: • International (interstate) armed conflict• Wars of national liberation in pursuit of the right of

self-determination• Non-international (internal) armed conflict• Peacetime disturbances (riots, banditry…)

Background

Triggering LOAC• Conflict classification• “Common Articles” 2 and 3 (Identical in all 4 GCs)

CA 2 – International Armed Conflict

CA 3 – Non-International Armed Conflict (internal armed conflict)

The entire GC apply

Only CA 3 applies

GC I (W&S) GC II (W/S/S at Sea) GC III (PW) GC IV (Civilians)

Hybrid

International Armed Conflict• Common Article 2• State v. State• Triggers full body of GC• Combatants & Protected

Persons get protections from all 4 GCs

• Most important provision?• Combatant Immunity

GC I (W&S) GC II (W/S/S at Sea) GC III (PW) GC IV (Civilians)

Pictet: Armed Conflict: “Any difference arising between two States and leading to the intervention of armed forces”

Non-International Armed Conflict

• Common Article 3• State v. Insurgent or

Non-State• Only CA 3 applies• Not full body of GC• “Mini-convention”• No Prisoners of War• No Combatant Privilege

• Domestic Law applies

Pictet: Armed Conflict:1) organized military force?2) subject to some authority?3) control territory?4) Respect the law of war?4) Does the State respond with regular armed forces?

Combatant Privilege

• POW Rights

• Immunity from Prosecution for killing and military destruction

Common Article 2

International Armed Conflict “Triggers”

Common Article 2• In addition to the provisions which shall be implemented in peacetime, the

present Convention shall apply to all cases of declared 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 the said occupation meets with no armed resistance.

• Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Common Article 2• In addition to the provisions which shall be implemented in peacetime,

the present Convention shall apply to all cases of declared 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 the said occupation meets with no armed resistance.

• Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Common Article 2• “Any difference arising between two States and leading to the

intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war.”

• “It makes no difference how long the conflict lasts, or how much slaughter takes place . . . . If there is only a single wounded persons as a result of the conflict, the Convention will have been applied as soon as he has been collected and tended . . . .”

~ Pictet’s Commentary

Common Article 2• In addition to the provisions which shall be

implemented in peacetime, the present Convention shall apply to all cases of declared 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 the said occupation meets with no armed resistance.

• Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Common Article 2• In addition to the provisions which shall be implemented in

peacetime, the present Convention shall apply to all cases of declared 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 the said occupation meets with no armed resistance.

• Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Common Article 2

• Article 18(1). Apart from the provisions which shall take effect in time of peace, the present Convention shall apply in the event of declared 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 or more of them.

Cf. 1954 Hague Cultural Property Convention

Common Article 2• In addition to the provisions which shall be implemented in peacetime, the

present Convention shall apply to all cases of declared 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 the said occupation meets with no armed resistance.

• Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Common Article 2• In addition to the provisions which shall be implemented in peacetime, the

present Convention shall apply to all cases of declared 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 the said occupation meets with no armed resistance.

• Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Common Article 2

“When one of the Parties to the conflict is not bound by this Protocol, the Parties to the Protocol shall remain bound by it in their mutual relations. They shall furthermore be bound by this Protocol in relation to each of the Parties which are not bound by it, if the latter accepts and applies the provisions thereof.”

Cf. Additional Protocol I, Art 96(2)

Common Article 2

“It has already been said that the Conventions are coming to be regarded less and less as contracts on a basis of reciprocity concluded in the national interest of each of the parties, and more and more as solemn affirmations of principles respected for their own sake, and as a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. A State does not proclaim the principle of the protection due to wounded and sick combatants in the hope of saving a certain number of its own nationals. It does so out of respect for the human person as such.”~ Pictet’s Commentary

Erga Omnes?

Additional Protocol #I

“Controversial Expansion”

Additional Protocol I

• What?• Why? • Who?• When? • How?

• Comprehensive, multilateral treaty • Update LOW / supplement Geneva • States, ICRC, plus PLO, ANC … • 1970s (four diplomatic conferences)• By consensus

History / Background

AP I and II supplement the Conventions “by extending the scope of their application, the categories of protected persons and objects and the protection conferred.”

~ ICRC Commentary on the Additional Protocols

What are some of the advances?

Additional Protocol I

• Formalizes much of the customary law of war– Codifies core LOAC principles (distinction, proportionality,

etc.)• Specifies command responsibility• Greater protections for certain objects • Greater protections for civilian population (no carpet

bombing of civilian centers)• New rules for medical aircraft• R• Article 82: lawyers must be present on the battlefield to

advise commanders!

What are Some of the Flaws?

Additional Protocol I

• CAR’s• Dangerously Expands lawful combatant category• New and specific attacker responsibilities• Reprisals• Mercenaries• Infrastructure Issues

• Q: What to do about the problems?– U.S. approach: “fundamentally and irreconcilably flawed.” – U.K. approach: Ratify w/ RUDs

Problems

Classification and Triggers

• Issue: What law applies? – “Right type of conflict?”

– Four possibilities: • International (interstate) armed conflict

•Wars of national liberation in pursuit of the right of self-determination• Non-international (internal) armed conflict• Peacetime disturbances (riots, banditry…)

Combatant Privilege

Combatant Privilege

GCIII + IV

1. Command chain2. Distinctive Uniforms3. Open Arms4. Comply with LOAC

Combatant Privilege

AP I1. Command chain2. Distinctive Uniforms ONLY IN

COMBAT + prep for combat3. Open Arms “ditto”4. Comply with LOAC

Combatant Privilege

AND IF THEY DON’T FOLLOW LOAC?

- TREAT THEM LIKE A POW IN ALL BUT NAME.

- Why does this bother US?

Additional Protocol I

• 1977: Baxter Presentation at Jag School• 1987: Reagan submits AP II to the Senate, but withholds

AP I, calling it “fundamentally and irreconcilably flawed”• 1988: Matheson Remarks (pg 231 of DocSupp)• 1990: Parks’ Article, Air War and the Law of War• 1998: UK ratifies AP I• 2001: France ratifies AP I• 2008: U.S. ratifies five LOW treaties• 2011: 170 States Party to AP I

Significant events related to AP I

Common Article 2

• “The Conventions, it says, should be regarded ‘as being the codification of rules which are generally recognized’, and it is in their spirit that the Contracting States ‘shall apply them, in so far as possible’”.

~ Pictet’s Commentary

Erga Omnes?

DOD Policy (DODD 5100.77)

• Heads of DOD Components must … ensure that the members of their Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations.

9 Dec 1998

Rescinded!

DOD Policy (DODD 2311.01E)

• 4.1. Members of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.

9 May 2006

2008: US Ratifies 5 LOW Treaties• John Bellinger, the Legal Advisor to Department of State has

noted that “ratification would promote U.S. international security interests in vigorously supporting, along with our friends and allies, both the rule of law and the appropriate development of international humanitarian law.” Even though the U.S. military has followed these treaty provisions, as a matter of policy, since the U.S. signed each treaty, their ratification is a symbol of U.S. application of the rule of law in armed conflict and helps restore U.S. leadership in the law of war.

~ From article in the Army Lawyer

Additional Protocol I

• Proposition: Additional Protocol I has proven in practice not to be fundamentally and irreconcilably flawed. The United States should ratify it.

Debate

Classification and Triggers I

• History and Sources– Modern (post Lieber code and Solferino) LOW is highly codified– Tendency towards greater “victim” protection in more conflict situations– LOW treaties typically “one war behind reality” (responses to last war) – New approach: Ottawa procedure led by NGOs and smaller states who share similar agenda;

minilateralism? – CIL claims easy to make, tough to substantiate (see Petane, ICRC Study)

• Common Article 2 = IAC Trigger– The entire body of the law of war is triggered based not on labels but on whether the

instrumentality of armed force is used – Armed conflict = de facto standard– No more clausula si omnes; instead, moving towards erga omnes obligations– Decline of reciprocity; “Principles respected for their own sake”

• Additional Protocol I– Represents a controversial expansion of the LOW to cover wars of national liberation in

pursuit of the right of self-determination (CARs)– But… CARs provision never used– Codifies customary int’l law (see Matheson: 59 of 91 articles = CIL)– Ratified by most of the world (170 parties)– Probably unlikely that the U.S. will ever ratify??

Concluding Observations

Backup Slides

Additional Protocol I

• (b) The United Kingdom understands the term "feasible" as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.

(c) Military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

UK Reservation

Libya

S. v Petane

Scenario

Over 48,000 people have been killed in Country X as a result of fighting and violence; over 5,300 have been kidnapped

The insurgents, with numbers estimated at 100,000, are establishing their own form of government in sections of

Country X, levying taxes against the people, and regulating traffic in certain areas

Country X has been engaged in a “mortal combat” with “insurgents” for over five years

Country X is battling the insurgents with police and with over 40,000 members of its armed forces – the US has been asked

to send in advisors to assist

The insurgents often wear uniforms and fight with military-grade weapons

Where is this?

Is this armed conflict? If so, what type of conflict is this? International? Non-International?

What laws apply? What protections apply for the government forces? What protections apply for the

members of the drug cartels?

Mexico

“It’s a real war… We’re not faking. ”- Major of Tijuana

“There really is an armed conflict in Mexico. There really is a war.”

-Mexico City JournalistJan 2012

Ripped from the Headlines…01/15/12: The Miami Herald reports that Russia's Foreign Ministry has accused the US of breaking international law by keeping terror suspects in indefinite custody without trial at Guantanamo Bay. The ministry says the prison and authorizing indefinite detention represents a "flagrant violation of international law“ and contradicts US obligations under international humanitarian law.

01/17/12: The Washington Times published an article entitled: “Bureaucracy Killing U.S. Troops In Afghanistan: Political Correctness Keep Army Medevac Helicopters Grounded” arguing that Army regulations requiring that Medevac helicopters abide by the Geneva Convention should not be followed in our current conflict in Afghanistan.