LAW 549

1. LAW 549 Sources of International Humanitarian Law

2. Outline • History of rules of warfare • 19th century – the birth of conventional IHL • World Wars • Modern LOAC

3. History of LOAC Ancient Times • China (4th century B.C.). Sun Tzu's The Art of War set out a number of rules that controlled what soldiers were permitted to do during war: • captives must be treated well and cared for; and • natives within captured cities must be spared and women and children respected. • Babylon (7th century B.C.). The ancient Babylonians treated both captured soldiers and civilians with respect in accordance with well-established rules.

4. Middle Ages through 19th Century Chivalric Codes • Victors were entitled to spoils of war, only if war was just. • Forces prosecuting an unjust war were not entitled to demand Jus in Bello during the course of the conflict. • Red Banner of Total War. Signalled a party's intent to wage absolute war (Joan of Arc announced to British "no quarter will be given")

5. Rules of Chivalry Were Often Ignored 1745 Battle of Culloden • Cumberland’s order to give no quarter to the wounded on the Battlefield. • Over the two days following the battle, all wounded clansmen were put to death • Many prisoners executed

6. Mistreatment of Prisoners • Little, if any respect was given to prisoners • Conditions were often appalling • US civil war was particularly brutal • Camps had an average 25% mortality rate

7. Lack of Care for Sick and Wounded • Little or no care was available for sick and wounded • Medical personnel not respected • Could be prosecuted for assisting enemy • Battle of Solferino and Henri Dunant

8. Modern Era: 1856-Present • Multilateral treaties begin to codify and/or supplant Customary International Law • Customary Law fills the gaps

9. Lieber Code • Art. 49 -...prisoners of war... [are]entitled to the privileges of a prisoner of war • Art. 53 -The enemy's chaplains, ...medical staff, ... are not prisoners of war, unless the commander has reasons to retain them. • Art. 60 - It is against the usage of modern war ...to give no quarter. • Art 76 - Prisoners of war shall be fed ... and treated with humanity

10. Conventional IHL Evolved from Two “Streams” • GENEVA STREAM : • Protection of victims of war • HAGUE STREAM : • Means and methods of warfare

11. Geneva Stream 1864 - Geneva Convention (Wounded) 1906 - Geneva Convention (Shipwrecked) 1929 - Geneva Conventions (Wounded & PW) 1949 - Geneva Conventions (Wounded, Shipwrecked, PW & Civilians) 1977 - Additional Protocols (International & Non-international Armed Conflicts) 1998 - Rome Statute of the International Criminal Court 2000 - Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict ( a human rights treaty) Superceded by 1949 GCs

12. Hague Stream 1868 - St. Petersburg Declaration 1899 - Hague Declaration - Asphyxiating Gases 1907 - Hague IV Convention with Regulations 1925 - Gas Protocol 1954 - Hague Cultural Property Convention 1980 - Conventional Weapons Convention 1993 - Chemical Weapons Convention 1997 - Anti-Personnel Mine Convention 2008 - Convention on Cluster Munitions

13. 1864 Geneva Convention • Sick and wounded shall be collected and cared for • Neutrality of medical personnel and transports • No prosecution of civilians who treat the wounded • Adoption of the symbol of the Red Cross 1868 protocol – extended to hostilities at Sea

14. St Petersburg Declaration - 1868 • The Contracting Parties engage mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grams, which is either explosive or charged with fulminating or inflammable substances.

15. Final Act Of the International Peace Conference: The Hague 1899 • Convention for the peaceful adjustment of international differences. • Convention regarding the laws and customs of war on land. • Convention for the adaptation to maritime warfare of the principles of the Geneva Convention of 22 August 1864. • Three Declarations:1. To prohibit the launching of projectiles and explosives from balloons or by other similar new methods.2. To prohibit the use of projectiles, the only object of which is the diffusion of asphyxiating or deleterious gases.3. To prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core or is pierced with incisions

16. Hague Convention II of 1899 Convention Regarding The Laws And Customs Of War On Land Section 1: Qualification of combatants, Prisoners of War, sick and wounded. Section 2: Methods and means of warfare, spies, flags of truce, capitulation, armistice Section 3: Occupation Section 4: Neutral States

17. Martens Clause The Martens Clause states that insofar as the LOAC treaties are silent on a specific issue, customary international law continues to govern the situation. Furthermore, the Martens Clause implies that what is not expressly forbidden by the LOAC is not necessarily permitted.

18. Geneva Convention 1906 • Increased scope of respect and protection to medical personnel • Instructions on how to deal with the dead

19. Hague Rules: 1907 • Pacific settlement of international disputes. • Limitation of the employment of force for the recovery of contract debts. • The opening of hostilities. • The laws and customs of war on land. • Rights and duties of neutral powers in case of war on land. • Status of enemy merchant ships at the outbreak of hostilities. • conversion of merchant ships into warships. • automatic submarine contact mines. • bombardment by naval forces in time of war. • adaptation to naval war of the principles of the Geneva Convention. • right of capture in naval war. • International Prize Court. • neutral Powers in naval war. • Declaration prohibiting the discharge of projectiles and explosives from balloons.

20. Convention Relative to the Treatment of Prisoners of War (Geneva 1929) • Provisions for POW were contained in the Hague Regulations of 1899 and 1907. • WW 1 -deficiencies & lack of precision. • 1929 - ICRC draft submitted to the Diplomatic Conference convened at Geneva in 1929. • 1929 Convention does not replace but only completes the provisions of the Hague regulations. • Russia, Japan do not sign.

21. World War Two Unimaginable Brutality Toward POW • Millions of German and Soviet POW died in each others camps • Japanese captors were brutal. Many allied PW starved to death or died of disease • Canadian/US/British camps far more humane.

22. Murder in Normandy • 12th SS against Canadians • Abbey at the Ardennes25:38

23. The Geneva Conventions of 1949 • GC I – Wounded and Sick in Armed Forces in the Field • CGII – Wounded, Sick and Shipwrecked in Armed Forces at Sea • GC III – Treatment of Prisoners of War • GC IV – Protection of Civilian Persons in the Time of War

24. Geneva Conventions • The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law • They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war

25. Common Article 2: Applicability in Armed Conflict • Art. 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.

26. Common Article Three(Armed Conflict Not Of An International Character) • Persons taking no active part in the hostilities… shall in all circumstances be treated humanely….To this end, the following acts are and shall remain prohibited… (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court…. (2) The wounded and sick shall be collected and cared for.

27. Individual Liability Common Articles 49/50/129/146 • National legislation for prosecution of Grave Breaches • Obligation to search for and prosecute violators • Take measures to prevent other breaches of the Conventions

28. Grave Breaches • Grave breaches are the following acts committed against protected persons: • wilful killing, • torture or inhuman treatment, including biological experiments, • wilfully causing great suffering or serious injury to body or health, • extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

29. Geneva Conventions Act (Canada) 3. (1) Every person who, whether within or outside Canada, commits a grave breach [of the Geneva Conventions… is guilty of an indictable offence, and (a) if the grave breach causes the death of any person, is liable to imprisonment for life; and (b) in any other case, is liable to imprisonment for a term not exceeding fourteen years.

30. The Holocaust • Genocide focused primarily on the destruction of the Jewish population of Europe • Central to Nazi philosophy • 6-10 million people exterminated • Most sophisticated genocide in history • Shocking detail of experiments, cruelty

31. Genocide Convention • Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.

32. Convention for the Protection of Cultural Property (1954) Movable or immovable property of great importance to the cultural heritage of every people, such as monuments, buildings of cultural significance, museums, art or history, archaeological sites; … important collections of books or archives … (1999 Protocol provides enhanced protection)

33. Biological Weapons Convention (1972) States Party will never in any circumstances develop, produce, stockpile or otherwise acquire or retain and will destroy: • microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; • weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

34. Protocols Additional to the Geneva Conventions (1977) • API – Protection of Victims of International Armed Conflicts • AP II - Protection of Victims of Non-international Armed Conflicts • AP III - Adoption of an Additional Distinctive Emblem

35. Additional Protocol One • Part One - General Provisions • Part Two – Wounded, Sick & Shipwrecked • Part Three – Methods and Means, Combatant Status • Part Four – Civilian Population • Part Five – Execution of the Protocol • Part Six – Final Provisions

36. Additional Protocol One Part IV – Protection of Civilians Article 48 • In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

37. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (1980) • Prohibitions are found in Protocols: • Non-Detectable Fragments (Protocol I); • Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II); (amended 1996) • Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). • Blinding Laser Weapons(Protocol IV) • Explosive Remnants of War (Protocol V)

38. Chemical Weapons Convention (1993) • Each State Party to this Convention undertakes never under any circumstances: • To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; • To use chemical weapons; • To engage in any military preparations to use chemical weapons; • To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

39. Ottawa Convention (1997) 1.Each State Party undertakes never under any circumstances:a) To use anti-personnel mines;b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines;c) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.2. Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of this Convention

40. Canadian Reservation to Ottawa Convention • The mere participation by the Canadian Forces, or individual Canadians, in operations, exercises or other military activity conducted in combination with the armed forces of States not party to the Convention which engage in activity prohibited under the Convention would not, by itself, be considered to be assistance, encouragement or inducement in accordance with the meaning of those terms in article 1, paragraph 1 (c)."

41. Some of the States Not Party to Ottawa Convention • United States* • Russia* • China* • Iran • India* • Pakistan* • Israel* • North Korea • South Korea • Poland* • Syria • Egypt • Libya • Saudi Arabia *Signatories to CCW Protocol II

42. Rome Statute: International Criminal Court (1998) • Establishes permanent international court • Jurisdiction over core crimes of: • Genocide • Crimes Against Humanity • War Crimes • Crime of Aggression

43. Jurisdiction Over Individuals The Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute … (a) The State on the territory of which the conduct in question occurred … (b) The State of which the person accused of the crime is a national.

44. ICC States Party Green indicates ratified or acceded. Orange indicatessigned but not ratified.

45. Cluster Munitions (2008) 1. Each State Party undertakes never under any circumstances to:(a) Use cluster munitions;(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.2. Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft.3. This Convention does not apply to mines.

46. QUESTIONS?