Government 1740 International Law Summer 2008

1. Government 1740International LawSummer 2008 Lecture 10: Humanitarian intervention, Laws of War, and Individual Criminal Responsibility

2. What is humanitarian intervention? “The prerogative of a foreign actor (state, a coalition of states, international organization) to act within the territorial jurisdiction of a state to ameliorate or terminate violations of internationally recognized human rights.” Rwanda Refugee Camp

3. Humanitarian Intervention and the UN Charter • Article 39 - Security Council authority to “decide what matters shall be taken to restore international peace and security.” • Connection between fundamental human rights and international peace and security

4. Iraq and the Kurds (1991) • SC: Link between internal repression and international peace and security • Significant opposition within the Council • No authorization to use force

5. Somalia (1992): Intervening in Complex Emergencies • SC authorized intervention under Chapter VII • Authorized “all necessary means” to create a safe environment for aid delivery • UNOSOM - 30,000 troops deployed

6. Haiti: Intervention to Support Democracy  Security Council authorization  Operations Uphold Democracy (1994) and Secure Tomorrow (2004)  Justifications: • Threat to international peace and security - Humanitarian concerns - Illegitimacy of regime

7. NATO Bombing in Kosovo (1998-1999): Intervention by a Regional Organization • Security Council Res. 1199 – invoked Ch. VII, but did not authorize use of force • NATO bombing campaign • Justification: • Enforcement action? • Collective self-defense? • Humanitarian intervention?

8. A“Just” Forceful Intervention?

9. Laws of War – Outline: • Issues of just war fighting • Principles of just war fighting • Proportionality • Discrimination • Limited means • Codification of the laws of war • Hague Conferences of 1899 and 1907 • Geneva “Red Cross” Conventions of 1949 • Geneva Additional Protocols of 1977 • Prisoners of war • Compliance with the laws of war • Individual criminal responsibility • Crimes • Development of International for a • The ICC • Conclusions

10. I. Issues of Just War Fighting • What limits does international law place on the way states can fight? • Who, or what, is "the enemy"? • Who is a combatant, and who is not? • How are civilian non-combatants to be treated? • When does a soldier cease to be a combatant? • What is a war crime, and who is responsible?

11. II. Principles of Just Warfighting • Proportionality • Discrimination • Prohibited Means

12. Article 35(1) of the 1977 Geneva Protocol I to the 1949 Geneva Conventions, Section 1:"In any armed conflict the right of the parties to the conflict to choose methods or means of warfare is not unlimited." Proportionality - of military means to political ends

13. Discrimination • Direct intentional attacks on non-combatants and non-military targets are prohibited. • Is discrimination possible when modern war involves total mobilization of a society? • Commingling of military targets with population centers?

14. Prohibited Means • Means that are bad in themselves (malum in se) • Means that are bad because they are prohibited (malum in prohibitum) • Inhumane Weapons • Environmental Warfare • Weapons of Mass Destruction • Nuclear Weapons?

15. III. Codifying the Laws of War • Hague Conferences of 1899 and 1907 • Geneva “Red Cross” Conventions of 1949 • Geneva Additional Protocols of 1977 Henry Dunant

16. Geneva Conventions of 1949 • Convention on Wounded and Sick Members of the Armed Forces in the Field • Convention on Wounded, Sick and Shipwrecked at Sea • Convention on Prisoners of War • Convention for the Protection of Civilian Persons in Time of War

17. Geneva Additional Protocols of 1977 • Focus is on role of non-combatants • Applies to non-international conflicts • Operations against non-military targets prohibited • Combatants and non-combatants defined • Indiscriminate military activity prohibited • Variety of other actions prohibited

18. IV. Prisoners of War • POW Status Criteria Art 4(A) of Geneva Convention on POWs: • Members of armed forces that are parties to a conflict • Members of militias or other forces belonging to one of the parties, if they • Are commanded by some one responsible for subordinates • Have a fixed sign recognizable from a distance • Carry arms openly • Conduct operations in accordance with the laws and customs of war

19. U.S. Policy Toward ‘Enemy Combatants’ • Afghanistan: captured Al Qaeda classified as “detainees of war” or “unlawful combatants” • Iraq: captured Iraqis are being treated as POWs

20. Determination of POW status • Geneva Convention, Article 5: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” • Administration’s view: This is a new war, and the old rules can’t apply exactly.

21. “… we concluded they did not have a responsible military command structure, that turbans aren't a recognized uniform that distinguishes them, and although they carry arms openly, everyone in Afghanistan carries their arms openly. They repeatedly failed to observe the customs and laws of war. The whole idea of Geneva is that it's not just a humanitarian treaty to treat people nice: it distinguishes those who are entitled to P.O.W. treatment.” -Administration Official Are captured Taliban POWs?

22. V. IR Theories of Compliance • Realism: • States comply with treaties that are in their interest • Laws of war mirror the distribution of power • Expectations: • Lots of bans on weapons and tactics that are not militarily useful to the most powerful states • As the banned weapon or tactic becomes more useful, compliance will decline.

23. Empirical findings: • Thomas Smith: • IL has primarily addressed low-tech war-fighting • 1980: UN Convention on Conventional Weapons • 1997: Convention on the Prohibition of Anti-Personnel Mines • Does little to specifically regulate high tech weapons • Aerial bombing • Nuclear weapons • IL ignores the public health consequences of modern high-tech warfare. • Compliance does not mean effectiveness

24. IR Theories of Compliance • Rational functionalism • State interests are central • But states have a strong interest in limiting war fighting • International agreements can be very useful • Clarify obligations • Clarify what constitutes a violation • Define appropriate responses to violations. • Expectations: • The “brighter the line” the better the compliance • Reciprocity: mutual obligation improves compliance

25. Empirical Findings: • Jim Morrow: • The importance of reciprocity • The importance of regime type • The importance of centralization

26. IR Theories of Compliance • Constructivism: • Compliance follows from norm internalization • Norms shape understandings of interests • Domestic values may bear on the internalization of international norms • Expectations: • Democracies will be better compliers • Rules prohibiting practices that are malem in se will exert a stronger compliance pull • Treatment of domestic prisoners will predict treatment of POWs

27. VI. Individual Criminal Responsibility

28. Sources of International Law for Establishing Individual Criminal Responsibility • Customary International Law • E.g., Crimes against humanity • Treaties • E.g., Genocide Convention • Decisions of Tribunals • E.g., Nuremburg, ICTY, ICTR

29. Individual Responsibility – for What? • Piracy • War crimes

30. Responsibility for what? • Crimes Against Humanity • Genocide

31. Responsibility for What? • Gross Human Rights Abuses • Terrorism

32. Individual Criminal Responsibility for Terrorism? • Custom? • Still no broadly accepted legal definition • Omitted from the ICC’s jurisdiction for lack of agreement on definition • but prominent in Security Council resolutions in the case of Osama-bin Laden and associates. (resolutions 1267, 1333, 1368, 1373) • Pattern of treaties: try to establish individual criminal responsibility. • International Convention for the Suppression of the Financing of Terrorism (1999) • International Convention for the suppression of Terrorist Bombings (1998)

33. II. Development of International Fora

34. The Nuremburg Model • Legal innovation in Political context • Principles • Legacy Nuremburg Tribunal, 1945-1946

35. Post Nuremberg Alternatives • Cold War: No institutionalized follow up • Ad hoc Tribunals under the Security Council: the ICTY model • Ad hoc Tribunals that combine national with international elements (Sierra Leone) • The International Criminal Court

36. National Courts Law Courts, London Supreme Court, Egypt Supreme Court, Canada Supreme Court, Pakistan

37. The International Criminal Court • Background • Jurisdiction • Complementarity • Ratification

38. US Government Position • Tentative participation • Hardening opposition • Vague authority • Outside of a constitutional structure • Unchecked judicial power of the prosecutor

39. Several countries have signed Article 98 Agreements with the United States

40. John McCain “I’m not satisfied that there are enough safeguards…[but] I want us in the ICC.” (BBC Worldservice televised debate, January 25, 2005)

41. Barak Obama “The Court has pursued charges only in cases of the most serious and systemic crimes and it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions … deserve full American support and cooperation. Yet… it is premature to commit the U.S. to any course of action at this time.” “The United States has more troops deployed overseas than any other nation and those forces are bearing a disproportionate share of the burden in the protecting Americans and preserving international security. Maximum protection for our servicemen and women should come with that increased exposure.”

42. US Public Opinion …Massachusans are strongly in favor

43. The Effectiveness of International Tribunals • In bringing individuals to justice? • Deterring future atrocities? • Enhancing local, regional peace and stability?

44. Summary • Humanitarian intervention bears a resemblance to Just War justifications for intervention. • While controversial, there is a growing debate over “R2P” • If force can be justified, it still must be used proportionately, discriminately, and without resort to prohibited weapons and tactics. • The laws of war are meant to protect civilians from intentional attack and establish rules for the decent treatment of POWs • Egregious violations of the laws of war could constitute a war crime and trigger individual responsibility • Many options exist for the prosecution of war and other international crimes: national courts, foreign courts, ad hoc tribunals, and the ICC. • The ICC was designed to supplement rather than supplant national jurisdiction over war crimes.