Law of Armed Conflict: Class #2 International Conflicts

1. Law of Armed Conflict: Class #2International Conflicts

2. A Brief Review: • 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

3. Introduction to International Law • Who are the Key Players? States • Defined Territory • Permanent Population • Government • Capacity to Conduct International Relations

4. Introduction to International Law • Consequences of Statehood? • 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.

5. Philosophy of Regulating War Review • 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

6. Contrasting IHRL and LOAC vs IHRL LOAC • Obligations on individuals • Specific principles • Enunciates individual and state responsibilities • No state derogation • Protections linked to nationalities or specific statuses (like combatants) • Citizens hold individual rights that their state respects • General principles • Enunciates state responsibilities • Allows for state derogation • Rights given to all

7. Principle Sources of LOAC International Agreements/Treaties Customary International Law LOAC • Consistent state practice + sense of legal obligation (opiniojuris) • 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 • Treaties: • Hague (Means and Methods) • Geneva (Respect and Protect) • Additional Protocols I and II

8. Treaty Law “One war behind reality…” • 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

9. 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

10. 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

11. Treaty-Based Law of War The LOW (governing IAC) is Highly Codified • 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

12. The Hague • Everyone has to be a “contracting party” them to apply to anyone

13. Common Article 2 Cf. 1929 Geneva Conventions “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

14. Classification and Triggers Background • 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…)

16. Triggering LOAC Conflict classification “Common Articles” 2 and 3 (Identical in all 4 GCs) CA 2 – International Armed Conflict The entire GC apply Hybrid CA 3 – Non-International Armed Conflict (internal armed conflict) Only CA 3 applies GC I (W&S) GC II (W/S/S at Sea) GC III (PW) GC IV (Civilians)

17. 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 Pictet: Armed Conflict: “Any difference arising between two States and leading to the intervention of armed forces” GC I (W&S) GC II (W/S/S at Sea) GC III (PW) GC IV (Civilians)

18. 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?

19. Combatant Privilege • POW Rights • Immunity from Prosecution for killing and military destruction

20. Common Article 2 International Armed Conflict “Triggers”

21. 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.

22. 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.

23. 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

25. 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.

26. 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.

27. Common Article 2 Cf. 1954 Hague Cultural Property Convention • 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.

28. 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.

29. 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.

30. Common Article 2 Cf. Additional Protocol I, Art 96(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.”

31. Common Article 2 ErgaOmnes? “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

33. Additional Protocol #I “Controversial Expansion”

34. Additional Protocol I History / Background Comprehensive, multilateral treaty Update LOW / supplement Geneva States, ICRC, plus PLO, ANC … 1970s (four diplomatic conferences) By consensus • What? • Why? • Who? • When? • How? 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

35. What are some of the advances?

36. 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!

37. What are Some of the Flaws?

38. Additional Protocol I Problems • 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

39. 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…)

41. Combatant Privilege

42. Combatant Privilege GCIII + IV • Command chain • Distinctive Uniforms • Open Arms • Comply with LOAC

43. Combatant Privilege AP I • Command chain • Distinctive Uniforms ONLY IN COMBAT + prep for combat • Open Arms“ditto” • Comply with LOAC

44. Combatant Privilege AND IF THEY DON’T FOLLOW LOAC? • TREAT THEM LIKE A POW IN ALL BUT NAME. • Why does this bother US?

45. Additional Protocol I Significant events related to AP 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

46. Common Article 2 ErgaOmnes? • “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

47. DOD Policy (DODD 5100.77) 9 Dec 1998 • 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 spiritof the law of war during all other operations. Rescinded!

48. DOD Policy (DODD 2311.01E) 9 May 2006 • 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.

49. 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

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