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Government S-1740 International Law Summer 2006

Government S-1740 International Law Summer 2006. Humanitarian Intervention, Warfighting and the Laws of War. Outline. I. What is Humanitarian Intervention? II. Intervening to protect nationals III. Intervening to protect non-nationals IV. Just Conduct of War

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Government S-1740 International Law Summer 2006

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  1. Government S-1740International LawSummer 2006 Humanitarian Intervention, Warfighting and the Laws of War

  2. Outline I. What is Humanitarian Intervention? II. Intervening to protect nationals III. Intervening to protect non-nationals IV. Just Conduct of War • Principles and codification of jus in bellum • The Laws Of and In War Post-911

  3. 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

  4. The Problem of Consensus • Content of international human rights? • When are rights threatened? • Who decides? The “international community”, coalitions, or individual states? • What mode of intervention? What is the role for military force?

  5. State Sovereignty Prohibition on the Use of Force Human Rights Dilemmas for International Law

  6. Unilateral Force to Protect Nationals • Humanitarian intervention to protect own nationals • Hostage-taking and Rescue Missions American Hostages in Tehran, 1979

  7. Unilateral Force to Protect Non-Nationals • No treaty law exists at all for unilateral humanitarian intervention on behalf of non-nationals. • Evolving or established right under Customary International Law?

  8. 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?

  9. Iraq and the Kurds (1991) • Established link between internal repression and international peace and security • Significant opposition within the Council • No authorization to use force (Res. 688)

  10. Haiti: Intervention to Support Democracy (1993-1995) • Military ouster of an elected regime • SC votes sanctions (Res 841) and blockade (Res 875) • Justification: • Threats to international peace and security • Humanitarian concerns • Illegitimacy of overthrow

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

  12. NATO Bombing in Kosovo (1998-1999): Intervention by a Regional Organization • Security Council Res. 1199 • NATO bombing campaign • Justification: • Enforcement action? • Collective self-defense? • Humanitarian intervention?

  13. A“Just” Forceful Intervention?

  14. Issues of Just War Fighting Whenever an armed conflict breaks out, certain questions arise: • Who, or what, is "the enemy"? • What happens to treaties between warring states? • What happens to enemy property? • 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 limits does international law place on the way states can fight? • What is a war crime, and who is responsible?

  15. Proportionality - of military means to political ends. Principles of Just Warfighting

  16. Legal definitions of proportionality • Article 22, §2, Chapter 1 of the Hague Rules of 1907:"The right of belligerents to adopt means of injuring the enemy is not unlimited.“ • 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."

  17. Proportionality Discrimination Principles of Just Warfighting

  18. 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?

  19. Principles of Just Warfighting • Proportionality • Discrimination • Prohibited Means

  20. 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?

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

  22. 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

  23. Geneva Additional Protocols of 1977 • Focus is on role of non-combatants • Operations against non-military targets prohibited • Non-combatants defined • Indiscriminate military activity prohibited • Variety of other actions prohibited

  24. 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

  25. Current U.S. Policy Toward Prisoners of War • How are current POWs treated? • Afghanistan: classified as “detainees of war” or “unlawful combatants” • Iraq: captured Iraqis are being treated as POWs

  26. YES The Conventions don’t require fulfilment of the four criteria in a particular way – therefore, they are POWs POW status does not depend on the grace of the winning belligerent Are they POWs? NO • The forces in Afghanistan failed to fulfil the requirements • Rumsfeld: The detainees are “committed terrorists” and therefore not entitled to POW status

  27. Determination of POW status • 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.” • Admin response: This is a new war, and the old rules can’t apply exactly.

  28. Military Commissions? • Long detentions a “security necessity”? • Detainees can challenge detainment in U.S. Courts (Hamdi v. Rumsfeld & Rasul v. Bush - 2004) • Detainee Treatment Act (Dec 2005) • Hamdan v Rumsfeld (June 2006) • What’s to become of the detainees?

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