The Law of Armed Conflict

1. The Law of Armed Conflict

2. Today’s Class • Introductions • General Principles • Why have Law of Armed Conflict • The Components of LOAC • Jus Ad Bellum Principles - in 6 parts • Today’s LOAC • Onward to Jus in Bello

3. General Principles. • International Law governs the conduct of STATES • International Law is set by • Treaties (subject to reservations and understandings) • Custom • General Principles

4. An End to War? Article 2(4) of the UN Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.” So…what about War and Genocide? Why is ours a history of constant failure to stop conflicts? The answer is that the UN is a club of states, and the rules were primarily set-up to preserve state sovereignty, so it is HARD to get members of the club to take action for actions some have already committed (or intend to commit in the future), and that few may see as a lying in their strategic interest.

5. What is LOAC? • Conflict Centered Rules • Sources: • The Hague Tradition (means of war) • The Geneva Tradition (victims of war) • Principles (treaty commentaries, military publications, etc.)

6. Is War Wrong? • The School of thought that says ALWAYS: • Pacificism + Absolutism: Certain moral precepts cannot be abandoned. • Examples provided: Ghandi, MLK Jr. • But, does call 9-1-1 on 9/11 work?

7. For Consideration • The 3rd Reich had a policy that untermenschen were not deserving of free life. At its most extreme, one concentration camp doctor used to kill and then boil the skulls of inmates with good dental work. He then handed-out the skulls as paperweights. How does one reason with pure evil of this nature?

8. Is War Wrong? The School of Thought that says – Wrong Question Militarism: War is not inherently bad + can be a beneficial aspect of society. “Realism” - “All is fair in love and war.” States should act on state interest. Moral concepts such as justice cannot be applied to the conduct of international affairs + moral concepts should never prescribe, nor circumscribe, a state's behavior. A state should place an emphasis on state security and self-interest. Consequentialism- The moral theory most frequently summarized in the words "the end justifies the means," which tends to support the just war theory only until less beneficial means become necessary

9. For Consideration German civilians often took poison rather than face Soviet occupation. This certainly cleared the streets and made the Soviet advance easier in some ways. It also may show that the Germans were being “trained” to never fight the Soviets again. However, what are the moral consequences of such a reign of terror, no matter how “deserved?” Is this policy even useful given that it also caused increased “to the last man” resistance by the armed forces?

10. What if LOAC is 1 Sided? What Value Then? US DoD Policy says it is still valuable: • To integrate humanity into war • As both a tactical and strategic combat multiplier Can we think of examples? Can we think of other reasons?

11. Why Subscribe to LOAC? • May motivate enemy to observe the rules • May motivate enemy to surrender • International Opinion • Helps restore peace – remember, war is not the end, it is the intermediate step to a just peace.

12. Why Subscribe to LOAC - II? • Protects our society’s character • Makes it easier for our soldiers to fight, and then easier for our soldiers to recover • Necessary for our civilian population to support war • Provides advance notice of consequences of conflict • Reduces confusion and makes right/wrong conduct easier

13. Just War Period 335 B.C. – 1800 A.D. Step 1: - Just War for Self-Preservation: Aristotle: 1) To prevent becoming enslaved 2) Establish leadership in the interests of the le 3) To enable men “to become masters over those who naturally deserved to be enslaved”

14. Just War Period 335 B.C. – 1800 A.D. Step 2: - Just War from Divine Justification: At first, no fighting allowed Once Christianity became the religion of leaders, altered to allow self defense e.g. Defense of the Holy Roman Empire from the Vandals

15. Just War Period 335 B.C. – 1800 A.D. Step 3: - Juristic Model: Transition from apologetic model of Thomas Aquinas to juristic model based on the benefits of inter-state relations

16. Jus Ad Bellum Principles • Just Cause • Competent Authority • Right Intention • Probability of Success • Last Resort • Macro Proportionality

17. War as Fact Period A.D. 1800 – 1918 Era of Realpolitik Clausewitz: War is a continuation of politics by other means Principle: Since each state is sovereign, there is no moral prohibition. Each state has a legal and recognized right to wage war. Increased focus on Jus In Bello

18. Jus Contra Bellum A.D. 1918-1949 Increasing focus on the idea that aggressive war must be outlawed: - League of Nations - Kellog-Briand – The Treaty for the Renunciation of War (remains in force today) Also, trauma of WWI led to increased focus on the means of waging war.

19. Post WWII A.D. 1949-Present The idea of universality of obligations UN Charter Early Charter Period – pure self defense Contemporary – Expanded right? The 4 GC’s: Customary Int. law (all are signatories) – less a contract and more a declaration of universal principles

20. The Three Components of Just War Doctrine Jus Ad Bellum Jus In Bello Jus Post Bellum

21. Jus Ad Bellum • Just Cause • Competent Authority • Right Intention • Probability of Success • Last Resort • Macro Proportionality

22. Jus in Bello • Distinction • Micro - Proportionality • Military Necessity • Fair Treatment of POW’s • Means Malum in Se

23. Jus Post Bellum • Just Cause for Termination • Right Intention • Public Declaration and Authority • Discrimination • Proportionality

24. By What Standard? • Who Decides? • Hindsight or Foresight? • Are these yes/no issues? • Does Context Matter? • What is the value of these criteria?

25. Jus Ad Bellum • Just Cause • Comparative Justice • Competent Authority • Right Intention • Probability of Success • Last Resort • Proportionality

26. Just Cause (1st of 6) • The damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain; • “Pure” self defense (invasion) • Non-intrusive defense (attacked) • Retaliatory Attack • Anticipatory Defense? • Collective Self Defense (to aid another who was attacked) • “Pure” Collective Intervention (to evict a foreign power who is invading)

30. Just Cause Today: UN Charter Authorizes TWO bases: • Chapter VII Enforcement Actions • Self Defense – Article 51 • Individual • Collective & compliance w/ domestic laws

31. Last Resort (2 of 6) • All other means of putting an end to it must have been shown to be impractical or ineffective; • Discussion cases: • Iraq-Kuwait? • Bosnia? • Rwanda? • Iraq II?

32. Proper Authority (3 of 6) • A war is just only if it is waged by a legitimate authority. Even just causes cannot be served by actions taken by individuals or groups who do not constitute an authority sanctioned by whatever the society and outsiders to the society deem legitimate.

33. Right Intention(4 of 6) The ultimate goal of a just war is to re-establish peace. More specifically, the peace established after the war must be preferable to the peace that would have prevailed if the war had not been fought A state must only pursue a war under the conditions agreed upon in the above criteria. Revenge is not permitted. The state must also be willing to apply the same level of objectivity and investigation into any war crimes its armed forces may have committed.

34. Likelihood of Success (5 of 6) • A war can only be just if it is fought with a reasonable chance of success. • Deaths and injury incurred in a hopeless cause are not morally justifiable.

35. Proportionality to Means (6 of 6) • The violence used in the war must be proportional to the injury suffered. States are prohibited from using force not necessary to attain the limited objective of addressing the injury suffered. • Q: Does this control only actions vis-à-vis the other, or towards one’s own population as well?

36. So, Where Does that Leave Us? • So What about Cyber – War? • Closing the Straights of Hormuz? • Drone Surveillance? • Espionage? • Killing of Iranian Scientists? • Killing of Drone maintenance crews?

37. U.S. v Plenty Horses

38. U.S. v. Wirtz (Andersonville)

39. U.S. v B.G. Smith

40. Son Thang + Private Schwarz

41. Major Edwin Glenn + Waterboarding